Mon | Sep 25, 2017

Harry Parkes | Free speech and social media

Published:Saturday | March 25, 2017 | 3:00 AMHarry Parkes
Latoya Nugent, co-founder of the Tambourine Army, has stoked controversy with her online campaign against paedophiles and other sex abusers.
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The recent arrest and charge of human-rights activist Latoya under Section 9 of the Cybercrimes Act of 2015 has triggered some degree of public outcry. Those 'protesting' the actions of the police include the Press Association of Jamaica, attorneys Anthony Gifford and Bert Samuels, as well as the chair of the Jamaica Coalition for a Healthy Society, Dr Wayne West.

The key argument advanced by these protesters is that Section 9 of the Cybercrimes Act introduces criminal libel through the back door, given that the Defamation Act of 2013 had abolished criminal libel. The weakness with that argument is that it confuses the self-evident intent of the amendment to the Defamation Act, which abolished criminal libel, with the designation of criminal offence for actions of obscene, threatening, and menacing behaviour as provided for in the Cybercrimes Act.

I submit that when the legislators amended the defamation their primary intent was to ensure that owners and operators of news organisations would not face the risk of being charged with a crime if they publish information that, although helpful to society, may offend some people. It is self-evident that the intent of the legislators could not have been to give news organisations free rein to publish obscene, threatening, and menacing information about individuals.

Taking into account that the Cybercrimes Act of 2010 did not have the current Section 9, which the 2015 amendment carries, and given that the purpose of the amendment (as Lord Gifford himself acknowledges) was to protect citizens (not just women) from behaviours such as stalking and bullying online, the criminalisation of certain behaviours was intended to deter persons from engaging in such conduct and hide behind online anonymity.

Thus, the Defamation Act and the Cybercrimes Act are not in conflict. They serve two separate purposes, and noted attorney Peter Champagne asserts that there is no confusion between the Defamation Act and the Cybercrimes Act as some have contended, and further that Section 9 of the Cybercrimes Act is quite clear.

 

FREE SPEECH DOESN'T MEAN RECKLESS SPEECH

 

In a 2014 Supreme Court case, CLAIM NO. 2009 HCV 00070, Justice Sykes quoted Lord Hope, who said:

The citizen is at liberty to comment and take part in free discussion. It is of fundamental importance to a free society that this liberty be recognised and protected by the law. The liberty to communicate (and receive) information has a similar place in a free society, but it is important always to remember that it is the communication of information, not misinformation, which is the subject of this liberty. There is no human right to disseminate information that is not true. No public interest is served by publishing or communicating misinformation. (emphasis supplied)

Bert Samuels compares the fines applicable under the Cybercrimes Act with those applicable for similar offences that do not involve a computer and suggests that those applicable under the Cybercrimes Act are "ridiculously high". The reason for this is sensibly simple. Using the Internet to traffic falsehoods about a person is worse than traditional forms of spreading falsehoods about individuals because online defamation is accessible to virtually anyone. With the anonymity of online, it raises even more concern when dealing with defamation because the author or origin of the statements may be very difficult to trace, depending on the medium used. In addition to the possibility of anonymity, the persons may engage in such acts from outside of the Jamaican jurisdiction.

 

ONE LAW FOR ALL

 

The original argument of some who came to the defence of the human-rights activist is that her arrest was an attempt by the State to silence her. To test the veracity of this claim, one need only recall that a few weeks prior, the police arrested and charged two women for making false and malicious reports about other persons using social media. In one case, a woman had posted a picture of her ex-boyfriend on a social-media site claiming that he was wanted for some crime. That woman was arrested and charged under Section 9(1) of the 2015 Cybercrimes Act. I do not recall anyone saying that that the arrest and charge of the woman was excessive or an overreach. Everyone seemed okay with it. There seems to be a double standard when it comes to this human rights activist? Is there a larger agenda?

It is instructive to take account of the Communications Act 2003 of the United Kingdom which provides for criminal sanctions for malicious communications. According to information on the Crown Prosecution Service of the UK, "Section 127 of the act makes it an offence to send a message that is grossly offensive or of an indecent, obscene or menacing character." This is almost the identical provision of Jamaica's Cybercrimes Act.

The Government would be well advised to guard against caving in to any lobbying that seeks to water down the provisions of the Cybercrimes Act. The next 'victim' of the venom of those who seem to arrogate to themselves the right to say anything about anyone could be the same politicians. People who break the law, regardless of their gender, sexual orientation, religious and political affiliation or social class, must face the due consequences.

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