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Cybercrimes Act is necessary - ODPP

Published:Friday | March 24, 2017 | 12:00 AMLivern Barrett
Andrea Martin Swaby

Before last month, the charge of using a computer for malicious communication was an obscure criminal offence included in Jamaica's Cybercrimes Act 2015 - the legal framework enacted by lawmakers two years ago to regulate activities in cyberspace.

But after two women were arrested and charged by the police in the last 30 days, the offence has triggered a debate about freedom of expression, particularly among members of one local group seeking to draw attention to incidents of sexual violence against women.

Sympathisers argue that the offence - contained in Section 9 of the Cybercrimes Act 2015 - is part of an attempt by local authorities to bring back criminal defamation through the back door. In 2013, Jamaica amended the Defamation Act to abolish criminal libel.

However, the Office of the Director of Public Prosecutions (ODPP), in a legal opinion made public yesterday, suggested that the charge of using a computer for malicious communication was not a "veiled attempt" to criminalise defamation.

Instead, the ODPP suggested that the offence was included in the legislation to specifically address the transmission of data, via a computer, which is threatening, menacing, or obscene with the intention to harass, cause harm or the apprehension of harm, to any person or property.

Prove three critical elements

"It is our view that Section 9 is a necessary provision in the Cybercrimes law given the evolution of crimes in cyberspace in the 21st century," read a section of the opinion, crafted by Andrea Martin Swaby, deputy director of public prosecutions and head of the ODPP's Cybercrimes and Digital Evidence Unit, and her deputy, assistant director of public prosecutions Yanique Gardener Brown.

The ODPP, in its legal opinion, said that the charge of using a computer for malicious communication requires prosecutors to prove, beyond a reasonable doubt, three critical elements: that a computer was used to send data to another person; that the data was obscene or constitute a threat; and that it was sent with the intention to harass another individual.

According to the ODPP, there is no requirement in the Cybercrimes Act for the published material to be false or harmful to a person's reputation to be categorised as defamation or criminal libel. "In other words, a Section 9 offence may exist even where a statement is true, which would then take it outside the tort of defamation," the ODPP argued.