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STICKS AND STONES; THE AGE OF THE COMPUTER. MALICIOUS COMMUNICATIONS – SECTION 9 OF THE CYBERCRIMES ACT 2015, JAMAICA “Sticks and stones may break my bones but words will never hurt me.”
INTRODUCTION Growing up, on every playground, in every high school classroom and venturing into adulthood the phrase ―sticks and stones may break my bones but words will never hurt me‖ was a very familiar quick retort to any perceived hurtful statement or argument. Dating back to Alexander William Kinglake in his EOTHEN 1830 this phrase sought to persuade a victim of name-calling to refrain from reacting and to remain calm in the face of taunting. But Mr. Kinglake I am sure when he coined this phrase never contemplated Charles Babbage and the computer. The first computer was created in 1880 surprisingly not for entertainment or social purposes but to solve a very serious number-crunching crisis. Created with the noblest of intentions the usage of the computer has in today’s society expanded exponentially and controls every aspect of our lives. With this expansion of the computer and its many platforms; such as social media, this phrase coined by Mr. Kinglake and so often spoken by our generation no longer holds true. The computer has made it so that words now have the effect and in some instances supersede the effect of sticks and stones. Words via the medium of the computer now break bones and the human spirit, cause irreparable damage to people’s lives and society and in many instances even leads to loss of lives. The computer admittedly a very positive and useful tool has managed to evolve into a weapon destroying the fabric of society by those who exhibit no care or responsibility in their usage of it.
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Recognising the dangers of the way in which humans utilise the computer there is now a clamour from some in society for legislators to play a more active role in monitoring and managing the manner in which a computer is used. The converse view is that there are those who feel that the criminal law has no place in this debate especially where we are dealing with adults. These competing views have led to the ongoing debate on whether or not Malicious Communications should be criminalised and to what extent or whether such communications should be dealt with in the civil realm. The effect of this is that legislators now face the very daunting task of regulating the use of the computer while respecting citizens’ constitutional rights.
WHAT IS A COMPUTER? A computer is defined as any device or group of interconnected or related devices, one or more of which, pursuant to a program, performs the automatic processing of data. It also includes a data storage facility, or electronic communication system. An electronic communication system is further defined as any system for creating, sending, receiving, storing, displaying, or processing electronic data. This definition is wide enough to capture such devices as thumb drives, smart phones, iPads, and other electronic tablets1.
DEFINING MALICIOUS COMMUNICATIONS Malicious Communications existed before the computer and the Internet but now it is being carried out by these mediums. What is deemed as Malicious Communications range from material that is sent that is grossly offensive or indecent or threatening to material that is false. For those countries that have criminalised Malicious Communications there are differences in terms of the extent of behaviour that falls under this heading and the ingredients to prove the offence, for example, intent versus lack of intent.
1Section
2 of the Cybercrimes Act, 2015, Jamaica
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Section 9 of the Cybercrimes Act of Jamaica, 2015, titled “Use of a Computer for Malicious
Communications” states that”: (1) A person commits an offence if that person uses a computer to send to another person any data (whether in the form of a message or otherwise)(a) (b) (c)
that is obscene, constitutes a threat or is menacing in nature; and with the intention to harass any person or cause harm, or the apprehension of harm, to any person or property,
………................................................
(2) An offence is committed under section (1) regardless of whether the actual recipient of the data is or is not the person to whom the offender intended the data to be sent.
(3) A person who commits an offence under subsection (1) is liable upon – (a) summary conviction before a Resident Magistrate to – (i) in the case of a first offence, a fine not exceeding four (4) million dollars or imprisonment for a term not exceeding four years; (ii) if any damage is caused as a result of the commission of the offence, a fine not exceeding five million dollars or imprisonment for a term not exceeding five years; (iii) in the case of a second or subsequent offence, regardless of whether or not any damage is caused, a fine not exceeding five million dollars or imprisonment for a term not exceeding five years;
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on conviction on indictment before a Circuit Court to – (i)
in the case of a first offence, a fine or imprisonment for a term not exceeding ten years;
(ii)
if any damage is caused as a result of the commission of the offence, a fine or imprisonment for a term not exceeding fifteen years; or
(iii)
in the case of a second or subsequent offence, regardless of whether or not any damage is caused, a fine or imprisonment for a term not exceeding twenty (20) years.
COMMON FORMS OF MALICIOUS COMMUNICATIONS 1. Cyber Bullying 2. Cyber Harassment/ Stalking 3. Revenge/Non-Consensual Pornography 4. Defamatory Attacks 5. Violation of Privacy Contained above are some of the most common forms of what is deemed Malicious Communications. All these items listed may fall under the headings of Defamatory Attacks and Violation of Privacy. The question often asked is “whether or not these acts should be
criminalised without more and if yes, what would be the something more?” For one to properly answer these questions each item is expounded on below.
CYBER BULLYING Cyber Bullying in simple terms is bullying that takes place via the use of digital devices for example phones, laptops and the internet. It is the use of electronic communication to bully a person, typically by sending messages of an intimidating or threatening nature or by posting material of an intimidating or mean-spirited nature which leads to shaming or ridicule.
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Cyber Bullying is usually more prevalent among children who are sometimes reluctant to report same but can and does extend to adults as well. Cyber Bullying is a form of Cyber Harassment. Regrettably, around the world to date, Cyber Bullying is primarily handled by social policies and disciplinary proceedings and has not been tackled on a large scale by legislation.
CYBER HARASSMENT/STALKING Cyber Harassment is the use of the Internet or other electronic means to stalk or harass an individual, group, or organization. It may include false accusations, defamation, slander and libel. It typically involves engaging in an act or behaviour that torments, annoys, terrorizes, offends, or threatens an individual via email, instant messages, or other electronic means with the intention of harming that person. Among the most infamous cases of Cyber Harassment is the case of Missouri 13-year old Megan Meier, who committed suicide after being harassed on the internet. Megan met an individual who she believed was a male peer on MySpace, but the individual who Megan was actually corresponding with was the mother of a teenage girl living in Meier’s neighbourhood. This 49-year old mother, Lori Drew, wrote hateful messages to the teen including this message on the day that Meier killed herself:
“the world would be a better place without you” (Steinhauer, 2008). Harassing communications has all the hallmarks of traditional harassment, but extends the crime into the use of electronic devices to communicate messages that cause a person to feel personally targeted for harm. For example, creating a Facebook account in someone else’s name and using that profile to insult people would be a form of Cyber Harassment. Sending inappropriate text messages (e.g., of a disturbing or sexual nature) or creating a website that features photo-shopped images of an unknowing individual in sexual acts are additional examples of Cyber Harassment. If it was part of a
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pattern or series of such behaviour, nearly any act of Cyber Harassment would constitute Cyber Stalking2.
Cyber Stalking In its most basic definition, this entails “the repeated pursuit of an individual using electronic
or Internet-capable devices” (Reyns et al., 2012, p. 1). Repeated pursuits include any unwanted electronic communications, and may be threatening, coercive, or intimidating. Ultimately, stalking is a crime that creates a sense of fear, terror, intimidation, stress or anxiety in the victim. Cyber Stalking has very far reaching and damning effects as it may lead to the victim ―losing a sense of control over his/her own life, never knowing when the stalker may appear or contact the victim again. The fact that the stalker can access the victim at any time from any distance undermines the victim’s sense of security and can lead to a constant experience of fear for the victim‖. In July of 2013, New York prosecutors secured an arrest warrant against a New Zealand woman named Jessica Parker who had been cyber stalking a writer named Melissa Anellin for approximately 5 years. One email written in 2009 stated, “You will have much to fear from me in the coming months. This is not over until someone is on the floor bleeding their life away,” (Annese, 2013). Despite the distance, the internet allowed Parker to stalk, threaten, and terrify Anellin on a regular basis, promoting a sense of fear and undermining a sense of control in the victim3.
REVENGE/ NON-CONSENSUAL PORNOGRAPHY Revenge pornography by its nature can take on many forms and to define it has been difficult.
In simple terms revenge pornography may be seen as the electronic distribution of sexually graphic images or videos of individuals without their consent.
2Hazelwood
& Koon-Magnin – Cyber Stalking and Cyber Harassment Legislation in the United States: A Qualitative Analysis 3Hazelwood & Koon-Magnin – Cyber Stalking and Cyber Harassment Legislation in the United States: A Qualitative Analysis
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Reference is made to Mary Franks „Drafting an Effective “Revenge Porn” Law: A Guide for
Legislators (2015) 4where she states that: “The term “revenge porn,” though popular, is misleading in two respects. First, perpetrators are not always motivated by vengeance. Some act out of a desire for profit, notoriety, or entertainment, or for no particular reason at all. Perpetrators include not only bitter ex-partners but also people who are complete strangers to their victims (my emphasis added). Second, the term “revenge porn” is sometimes interpreted to mean that taking a picture of oneself naked or engaged in a sexual act (or allowing someone else to take such a picture) is pornographic. Creating explicit images in the expectation within the context of a private, intimate relationship - an increasingly common practice - is not equivalent to creating pornography. However, disclosing a private, sexually explicit image to someone other than the intended audience can be described as pornographic in the sense that it transforms a private image into public sexual entertainment. Many victim advocates accordingly use the term “non-consensual pornography.” It is generally the aim of revenge pornography to humiliate and beset the victim by way of public exposure and to destroy the victim’s well-being whether mental or physical. Revenge pornography may also lead to the facilitation of other offences being committed for example, cyber stalking and harassment. From this definition it is also clear that what is termed as revenge pornography may exist in the absence of revenge and pornography. This is the reason that other persons have preferred the use of the term non-consensual pornography to refer to this type of conduct. Revenge pornography has very far reaching effects on persons from the destruction of careers to intimidating persons into silence and even driving them to committing suicide. Interestingly, most victims of revenge pornography are women5.
4http://www.cybercivilrights.org/guide-to-legislation/
For your Eyes Only REVENGE (NON-CONSENSUAL) PORNOGRAPHY IN JAMAICACRIMINAL OR TORTIOUS?PRESENTATION AT THE 4TH IAP CONFERENCE, MONTEGO BAY CONVENTION CENTRE, MONTEGO BAY, ST. JAMES NOVEMBER 2-5, 2016 – Yanique Gardener Brown 5
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One of the more famous cases on the effects of Revenge/Non-Consensual Pornography has its genesis in Italy and concerns the now deceased Tiziana Cantone. I have chosen to share this story because in my opinion it highlights just how damaging the posting of such material can be, not only to the victim but to their family and by extension society. “It probably took no more than a few seconds for Tiziana Cantone to begin the
sequence of events that led to her suicide. In April 2015, the 31-year-old from Mugnano, on the outskirts of Naples, sent a series of sex videos to five people via WhatsApp. The recipients included her boyfriend Sergio Di Palo, with whom she had an unstable relationship. The videos showed her performing sex acts with a number of unidentified men. The videos were soon shared and uploaded to several adult websites. The physical actions on the tapes did not stand out. But a single sentence from Tiziana Cantone did. "You're making a video?" she asked the man holding the camera. "Bravo!" The words suggested an uninhibited young woman, who enjoyed being filmed during sex. By accident, the phrase gave viewers licence to watch the video without reservations: if she was so happy to be filmed, she wouldn't mind them watching. But Italians did more than watch. Users soon turned her comment into a memeworthy punch line. Her image appeared on t-shirts and parody websites. No one seemed to worry what the subject herself might think as she seemed so pleased about it. But this was a profound misunderstanding. Ms Cantone decided to fight back. But there was no immediate way to get the videos taken down. She took the case to court, arguing the tapes were uploaded to public sites without her consent. By this time, she was no longer able to live a normal life.She didn't want to go out as people would recognise her. She realised that the virtual world and the real world were the same thing. She understood at some point that the situation
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would never be resolved; that a potential husband, her potential children could find those videos; that they would never disappear. Tiziana retreated to her family home in a quiet street in Mugnano, a working-class suburb of Naples. It took her mother, Maria Teresa Giglio, weeks to find the strength to tell reporters about her daughter's life. "My daughter was a good girl but she was also vulnerable," she told the BBC. "She lacked a paternal figure, from birth. She never met her father. This affected her entire life. Mother and daughter lived together. In happier times, Tiziana listened to Italian singers, read novels and played the piano. But after the intimate videos were shared online, she withdrew. "Her life was ruined, in front of everyone," says her mother. "People made fun of her, parodies ended up on pornographic websites. She was called shameful names." In September, a court in Naples ordered the intimate videos to be removed from several websites and search engines. But the court also ordered her to pay â‚Ź20,000 (ÂŁ17,200, $21,600) in legal costs. It was all too much. On 13 September 2016, Maria Teresa Giglio went to work at the local town hall. Her daughter stayed at home. Ms. Giglio received a phone call at work. "My sister-in-law called me, and in a calm voice told me to come home; when I got here I saw the police, the ambulance, and I quickly understood," she says, breaking down.
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"My sister-in-law tried to pick her up and save her. My neighbours didn't allow me to get out of my car. I almost fainted. They didn't want to let me into this house. I wasn't even able to see her for a last time. "The day she died, my life ended 6." People think that their virtual life and their real life are parallel realities," warns Ms. Lucarelli. "They're not. They coincide. The web is our life. So anything that you don't do in real life you shouldn't do online."
DEFAMATORY ATTACKS These are false or unsubstantiated statements made via the use of a computer which have the potential to affect and in some instances destroy a person’s reputation beyond repair. This information is posted sometimes from a place of anger or spite and is done with the intention to embarrass, humiliate or seek revenge on another. These attacks may encompass Cyber Bullying, Harassment and Revenge Pornography and due to the responses of those who view same may lead to loss of life, destruction of families and other farreaching effects.
VIOLATION OF PRIVACY This encompasses instances where persons expect that there will be privacy in the conduct of their affairs or have shared intimate images/material of themselves with persons with an expectation that it remains private. The posting of this material without the knowledge and consent of the person is a violation of privacy.
James Reynolds, Italy’s Tiziana : Tragedy of a Woman destroyed by Viral Sex videos : http://www.bbc.com/news/world-europe-38848528?ocid=fbind 6
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ESTABLISHING A SECTION 9 OFFENCE There are three ingredients that must be proved by the material presented to an Investigator before a prosecution can be initiated under this section. They are: 1. That a person used a computer to send to another person data. Send is not defined under any current legislation and as such it is to be given its Dictionary meaning which would include the publishing of material by a person to a social media site.
2. That the data sent is obscene, constitutes a threat or is menacing in nature. These terms are also not defined by the legislation.
Material that is obscene is of a sexual nature or offends against society’s morality and tends to deprave or corrupt minds open to immoral influences and into whose hands these publications would fall. Obscene material may be indecent but indecent material may not be obscene as obscenity is at a higher threshold.
Threatening
material
is
material
that
intimates
unconditionally
that
harm/danger/punishment will befall a person and may be similar to a menace.
Material that is menacing in nature is material that tends to threaten with harm or danger. 3. AND, that the material which is either obscene or a threat or menacing in nature, or all three, or a combination of the three, was sent with the intention to harass any person or cause harm or the apprehension of harm, to any person or property. Intention may be proved by direct evidence such as statements of the suspect showing their intention or it may be asked to be inferred from all the circumstances.
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These three elements referred to above must all exist in order for a section 9 offence to be created. It is also clear from this section that there is no requirement for the material published to be false or cause harm to a person‟s reputation and the like and as such fall under the heading of Defamation. A section 9 offence may exist even where a statement is true which takes it outside the tort of defamation.
Category 1. Threats Communications which may constitute threats of violence to the person or property may constitute a number of offences, including those set out below. A threat to kill contrary to section 18 of the Offences against the Person Act Jamaica can be considered where the communication constitutes a direct threat to kill. This section reads; ―Whosoever shall maliciously send, deliver, or utter, or directly or indirectly cause to be received, knowing the contents thereof, any letter or writing threatening to kill or murder any person, shall be guilty of a felony, and being convicted thereof, shall be liable to be imprisoned for a term not exceeding ten years, with or without hard labour.‖ Where the prosecution seeks to advance a case under section 18 of the Offences Against the Person Act, there must be evidence that the accused sent or delivered the writing to the complainant, and further it is a question of fact for the jury whether the contents of the writing amounts to a threat to kill or murder R v Boucher, 4 C &P. 562; R v Tyler, 1 Mood. 428 cited in Archbold‟s Pleading,
Evidence & Practice in Criminal Cases 36th Edition at p.3615 Threats of violence to the person or damage to property may also fall to be considered under section 9 Cybercrimes Act 2015. This section prohibits the sending of data which is threatening or menacing in nature. The Cybercrimes Act does not define the term menace, and as such the common law definition will be applicable in the interpretation of the statute.
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However, where the prosecution is seeking to prove that the message is of a menacing nature, before proceeding with such a prosecution, prosecutors should heed the words of the Lord Chief Justice in Chambers v DPP [2012] EWHC 2157 (Admin) paragraph 30 where he said: ―… a message which does not create fear or apprehension in those to whom it is communicated, or may reasonably be expected to see it, falls outside,… for the simple reason that the message lacks menace.‖. The case of Chambers v DPP also cited Sedley LJ in DPP v Collins [2006] 1WLR 308 where he stated in the context of a message which was menacing that; ―…fairly plainly, is a message which conveys a threat – in other words, which seeks to create a fear in or through the recipient, that something unpleasant is going to happen…‖.
Category 2. The Transmission of data which is Obscene. Communications via a computer which are obscene can be considered under the Obscene Publications Act or the Cybercrimes Act 2015.
In the year 1927, the Obscene Publications
(Suppression) Act was passed. This Act created the offence of Possession, Distribution, Publication of obscene writings, drawings, and photographs etc. The penalty if convicted remains at the paltry sum of Jamaican $40.00. Before the passage of the 2015 Cybercrimes Act, the publication or distribution of obscene images on the internet, or otherwise would give rise to a penalty of $40.00. What is obscene data? Obscene is not defined by the Obscene Publications Act or the Cybercrimes Act and as such the common law definition is applicable. This definition has gone through changes over the years. The definition of obscenity stated by Cockburn C.J in R v Hicklin
(1868) L.R. 3 Q.B. 360 was, “the test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.” The present common law meaning of obscene is to be found in the case of R v. Anderson (1971) 3
W.L.R. 939. It was stated therein that obscene is not confined to sexual content. The words “indecent” and “obscene” convey the idea of offending against property, indecency being at the
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lower, and obscenity at the upper end of the scale. An indecent article is not necessarily obscene, but an obscene article is most certainly indecent R v Stanley (1965) 2 Q.B. 32. The High Threshold at the Evidential Stage There is a high threshold that must be met before the evidential stage in the “The Decision to Prosecute: A Jamaican Protocol7”will be met. A communication sent has to be more than simply offensive to be contrary to the criminal law. Just because the content expressed in the communication is offensive, done in bad taste, controversial or unpopular, or defamatory, this is not a sufficient reason to engage the criminal law. The comment of the Lord Chief Justice in the case of Chambers v DPP [2012] EWHC 2157
(Admin) is applicable to our legislative context. He stated, in relation to section 127 of the Communications Act 2003 UK which prohibited communication that was grossly offensive, as follows; “Satirical, or iconoclastic, or rude comment, the expression of unpopular or unfashionable opinion about serious or trivial matters, banter or humour, even if distasteful to some or painful to those subjected to it should and no doubt will continue at their customary level, quite undiminished by [section 127 of the Communications Act 2003]‖. In our legislative context, section 9 is specific in that it prohibits obscene communication, and therefore it is not concerned with whether the communication is offensive, but whether it has a tendency to deprave and corrupt.
Context and Approach: The Mental Element One must bear in mind that before a decision is taken to prosecute, the context in which the communication is sent is of utmost importance in determining whether there exists evidence of a criminal intent to harass any person or cause harm or the apprehension of harm, to any person or property. The act requires proof of an intention to cause harm or distress and this is the highest level of subjective mens rea. 7http://www.dpp.gov.jm,
Written by Mrs. Andrea Martin-Swaby and Mrs. Yanique Gardener Brown
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Recklessness or negligence as to whether the sending of the information would cause harm or distress is insufficient. This is a critical consideration before a decision to prosecute is made. In the context of social media where communication may be sent as banter, jokes, or even careless commentary, there must be evidence of a criminal intent. Therefore due regard will have to be given to the surrounding circumstances in which the message or data is sent to satisfy this element of the offence.
STATISTICS ON MALICIOUS COMMUNICATIONS For January to October 2017 there were twenty-eight (28) requests referred to the Communication and Forensics Division (CFCD) which have been classified as Malicious Communication/Obscene Publication8. This represents a slight increase in the figures from January to June 2016 where there were sixteen (16) reported cases of this nature. In both these instances in the majority of these cases the parties have been referred to civil court as the criminal laws usually do not apply or assist their scenario. One may examine this data and be lulled into believing that this problem is minor and not worth all the strong feelings on criminalising this conduct as has been expressed. However persons do not report for a variety of reasons so any statistics gathered in this area will not reflect accurately the problem. Chief amongst the reasons for non-reporting is victim shaming and blaming which leads to non-reporting due to a fear of being ridiculed or further embarrassed or due to the belief that there is no real recourse for them that will satisfactorily address this problem. At present there are approximately seven cases of Malicious Communications contrary to section 9 within the Parish Courts and there are two more well-known cases where we have had to discontinue the prosecution due to the evidentiary material not satisfying the legal requirements of Section 9.
8
Source, the Constabulary Force of Jamaica
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REGIONAL RESPONSES TO MALICIOUS COMMUNICATIONS As a region since 2013 there has been a move towards criminalising this conduct by creating a number of offences such as Cyber-Bullying, Cyber-Harassment and Violation of Privacy. Jamaica continues to lag behind. Some examples are contained below.
ANTIGUA & BARBUDA ELECTRONIC CRIMES ACT, 2013 8. Violation of privacy (1) Subject to subsection (2), a person who, intentionally or without lawful excuse or justification, captures, publishes or transmits the image of a private area of a person, or the image whether whole or partial of a person in a vulnerable position without his or her consent, under circumstances violating the privacy of that person, commits an offence and is liable on – (a) summary conviction to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding two years, or to both; or (b) on conviction on indictment to a fine not exceeding two hundred and fifty thousand dollars or to imprisonment for a term not exceeding five years, or to both. (2) A person who commits an offence under subsection (1) is liable to face the same penalty specified in that subsection, where the victim of the offence is disabled or mentally incapacitated and incapable of giving his or her consent. (3) For the purposes of this section– ―capture‖ with respect to an image, means to videotape, photograph, film or record by any means; ―private area‖ means the naked or undergarment clad genitals, pubic area, buttocks or female breast; ―publishes‖ means reproduction in the printed or electronic form and making it available for public;
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―transmit‖ means to electronically send a visual image with the intent that it be viewed by a person or persons; ―under circumstances violating privacy‖ means circumstances in which a person can have a reasonable expectation that – i) he or she could disrobe in privacy, without being concerned that an image of his or her private area was being captured; or (ii) any part of his or her private area would not be visible to the public, regardless of whether that person is in a public or private place. ―vulnerable position‖ means circumstances in which a person is ill, injured or otherwise physically incapacitated. 13. Harassment utilizing means of electronic system A person shall not intentionally, without lawful excuse or justification intimidate, coerce or harass another person using an electronic system commits an offence and is liable on – (a) summary conviction to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding two years, or to both; or (b) on conviction on indictment to a fine not exceeding two hundred thousand dollars or to imprisonment for a term not exceeding five years, or to both.
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ST. VINCENT AND THE GRENADINES CYBERCRIME BILL, 2016 Violation of privacy 14. (1) A person who, intentionally and without lawful excuse or justification– (a) captures; (b) stores in, or publishes or transmits through a computer system, the image of a private area of another person without his consent where the other person has a reasonable expectation that – (i) he could disrobe in privacy; or (ii) his private area would not be visible to the public, regardless of whether he is in a public or private place, commits an offence. (2) A person who commits an offence under subsection (1) is liable on– (a) summary conviction to a fine of one hundred thousand dollars or to imprisonment for two years or to both; (b) conviction on indictment to a fine of two hundred and fifty thousand dollars or to imprisonment for five years or to both. (3) For the purposes of this section – ―capture‖ in relation to an image, means to videotape, photograph, film or record by any means; ―private area‖ means the genitals, pubic area, buttocks or breast;
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TRINIDAD & TOBAGO CYBER CRIME BILL 2015 Harassment Utilizing Electronic Communication
20. (1) A person who uses a computer system to— (a) coerce, intimidate or harass another person with intent to cause emotional distress; or (b) cyberbully, intentionally or recklessly, another person, commits an offence. (2) A person who uses a computer system with the intent to extort a benefit from another person by threatening to publish computer data containing personal or private information which can cause public ridicule, contempt, hatred or embarrassment commits an offence. (3) A person who commits an offence under this section is liable — (a) on summary conviction to a fine of one million dollars and to imprisonment for three years; and (b) on conviction on indictment to a fine of two million dollars and imprisonment for five years. (4) For the purpose of this section, ―cyberbully‖ means to use a computer system repeatedly or continuously to convey information which causes— (a) fear, intimidation, humiliation, distress or other harm to another person; or b) detriment to another person’s health, emotional well-being, self-esteem or reputation.
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CONCLUSION In looking at section 9 of the Cybercrimes Act, 2015 and the legal elements to prove this offence, it is my opinion that a wide range of communication that may be deemed malicious is not covered by this section. In fact, most cases of Cyber Bullying/Harassment/Stalking, Revenge Pornography and Violation of Privacy would not be and are not covered. The effect of this is that the moral fabric of Jamaican society continues to be eroded without any real substantial recourse available in law to its citizens. It does not help that most of the victims of these crimes are women who make up the majority of society but whose voice is being diminished the longer this victimisation occurs unchecked. Civil remedies though available in some instances are not sufficient and as the case of Tiziana Cantone suggests, offers no real recourse to a victim. The shame, ridicule, hurt and sometimes financial ruin that comes with these acts more often than not can never be recouped by a civil court. If we are serious about combating this scourge and deterring others, it is my humble but forceful opinion that it is in the criminal law that we MUST FIND recourse. It is my firm belief that if citizens in society were aware that they could be prosecuted successfully for these offences there would be more care exhibited in the way in which we use the computer. I am by no means saying that criminalising this conduct would be the cure. After all, I am a Prosecutor and while writing this paper, the million and one challenges that we already face and may face in prosecuting these matters come to mind; chief of which would be attribution. However in listening to the complaints made I cannot ignore that a lot of those who find themselves guilty of this conduct do so because they know that nothing or nothing significant will come of it. At its core one of the main roles of punishment is to serve as a deterrent. We should be reminded of this when coming to a decision on this matter. I acknowledge and appreciate the freedom of the press and a citizen’s freedom of expression, but one of the very basic legal principles is that these rights are not absolute and can be derogated from if it is demonstrably justified and required in a democratic society. In my opinion criminalisation is demonstrably justified and required in our democratic society. If there is one loss of life, one child or adult who committed suicide, one person who is terrified to
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walk outside, due to the transmission of malicious communication it is demonstrably justified. It is time for our legislators to act as our brothers and sisters in the region have and criminalise this conduct, not superficially as we have tried to do but in a real and significant way. It is time for us to recognise and accept that: Sticks and stones break bones but in the age of the
computer words demolish nations.
Written by:
Yanique L.T.S. Gardener Brown Attorney-at-Law # 4409 Assistant Director of Public Prosecutions Office of the Director of Public Prosecutions, Jamaica
November 9, 2017.