Mon | Jun 26, 2017

FULL TEXT: Cybercrime law not criminalising libel, says DPP

Published:Thursday | March 23, 2017 | 3:25 PM
Llewellyn: The offence of the use of a computer for malicious communication is not a veiled attempt to criminalise defamation

The Office of the Director of Public Prosecution has sought to explain the provision of Cybercrimes Act that has triggered controversy since the arrest of Tambourine Army co-founder Latoya Nugent.

Nugent has been charged with use of a computer for malicious communication after posting on social media several allegations against people she claims have been sexual predators.


IN PHOTO: Latoya Nugent

According to the Director of Public Prosecutions Paula Llewellyn, the offence of the use of a computer for malicious communication is not a veiled attempt to criminalise defamation.

In fact, she says the law safeguards and preserves Parliament’s decision to decriminalise defamatory material in written form.

SEE THE DPP's FULL STATEMENT BELOW:

Re: Malicious communications in cyber space ... is it criminal libel revisited?

I have noted the robust discussion on the captioned matter in the public domain.

As a public service I now make available a comprehensive dissertation to the public discourse in an effort to provide context and to explain aspects of the legal terms or provisions of the relevant legislation which arise in the discussion.  

This was prepared in consultation with me by Mrs Andrea Martin-Swaby, Deputy Director of Public Prosecutions and Mrs Yanique Gardener Brown, Head and Deputy Head respectively in charge of our Cybercrimes and Digital Evidence Unit of the Office of the DPP.


Introduction:
To deliberately utter a direct verbal threat is a criminal offence, so is the act of possessing or distributing obscene material. The Internet and the use of social media did not create these offences. However, with the exponential increase of society’s reliance on computers both have certainly changed and reoriented the way these traditional crimes are committed. Consequently the new Cybercrimes Act 2015 which addresses activities in cyber space, includes an offence titled ‘the Use of a Computer for Malicious Communication’, which addresses specifically the transmission of data via a computer which is threatening, menacing or obscene AND with the intention to harass or cause harm or the apprehension of harm, to any person or property.

In Jamaica, unlike threats and obscene publications, it is NOT a crime to defame a person regardless of the medium used. What does it mean to defame? At common law, the concept of defamation included slander and libel.  Where one uses words, “John is a gunman/ bad man/ dishonest man”, which are false, these words may have the effect of defaming John by lowering his reputation among right-thinking members of society generally. If these statements are proven to be untrue, John may succeed in a civil claim against this person for defamation. 

By virtue of the Defamation Act, 2013 of Jamaica this is a strictly civil matter as section 7 of the said Act indicates that criminal libel has been abolished in Jamaica.  Furthermore “the distinction at law between slander and libel is abolished” (by virtue of section 6 of the said Act).  It is our view that when one examines the required elements of the offence of the Use of a computer for Malicious Communication, these words by themselves which could be defamatory in the civil law when sent via a computer would not constitute the criminal offence of Malicious Communication under the Cybercrimes Act, 2015 without more.

In recent days, there has been much discussion in the public space querying whether the offence of the Use of a Computer for Malicious Communication contained within section 9 of the Cybercrimes Act of Jamaica of 2015 seeks to recriminalize Defamation or as some persons have characterised it — Criminal Libel.  The simple answer in our view is NO.

This discussion will focus briefly on the particular offence created in simple terms and the differences between the new offence of the Use of a Computer for Malicious Communication, and the non-criminal act of Defamation.

Section 9 of The Cybercrimes Act, 2015 
There are three elements that must be present in 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 arguably it may 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 has been defined in case law as material of a sexual nature or material that offends against society’s morality and tends to deprave or corrupt minds open to immoral influences and into whose hands these publications would fall.

— Threatening material is material that intimates 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 a person 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 his/her intention or it may be inferred from all the circumstances.

These three elements are to be construed conjunctively not disjunctively.  Therefore this means that all of the elements outlined above including the intention must exist 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 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.

Malicious Communications: Obscene Publications
In the year 1927, the Obscene Publications (Suppression) Act was passed. This Act created the offences of Possession, Distribution and 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.

The newly created offence of Malicious Communication attracts a penalty of four million dollars ($4,000,000.00) or imprisonment of up to fifteen (15) years if the offence is committed a second or subsequent time, one may be imprisoned for up to twenty (20). Therefore, if a person uses a computer to send obscene material, he/she may if convicted, face a penalty of $4,000,000.00 or serve up to 5 years.

Therefore, where a person uses a computer to send data (true or false) to another person which is obscene, and has the intention to cause annoyance, distress, then they may be prosecuted and fined for up to four million dollars ($4,000,000.00) or serve up to twenty (20) years in prison.

Malicious Communications: Threats
In Jamaica, the uttering of a direct unconditional threat to kill or to harm a person is an offence, for which a person can be charged and prosecuted.  Threats are prosecuted in the petty session courts, and carry a penalty of a fine and a usual warning to desist from carrying out the threat.

The offence of Malicious Communications creates an offence where a person uses a computer to send a message which is of a threatening nature or is menacing. The penalty is greater than that which attaches to the traditional offence.  So, for example, where a person uses their cell phone, or other computer device to send a threat to another person with the intention of harassing or causing harm or the apprehension of harm, he can be charged with Malicious Communication.

Defamation
A defamatory statement is one that is false which may be written or spoken and harms a person’s reputation by lowering their esteem in the minds of right-thinking members of society generally or exposes them to being shunned, hatred or ridiculed or damages their personal credit.

It is a defence to a defamation claim that the statement made was true, fair comment, innocently disseminated or subject to qualified privilege.

Conclusion
It is our view in light of all that we have outlined above, that section 9 is a necessary provision in the Cybercrimes law given the evolution of crimes in cyber space in the 21st century.  The offence of the Use of a Computer for Malicious Communication is therefore not a veiled attempt to criminalise what is defamation without more. An examination of this section reveals safeguards that contemplate and preserve Parliament’s decision to decriminalise defamatory material in written form.

The fact that defamatory material that is obscene, threatening or menacing and sent via a computer with the intention to harass or cause harm or the apprehension of harm, may be captured by the section which would be  in keeping with legislation in other jurisdictions around the world. These provisions in Jamaica and jurisdictions around the world recognise that as helpful as computers are they may be used in a way to commit criminal offences and as such society has to be protected.

As with all other criminal offences, the prosecution has the high standard of proving the case beyond a reasonable doubt.  Suspicion would be below that standard and would not be enough, therefore it would always be important that the prosecution and the police critically analyse the evidentiary material to discern whether or not the ingredients outlined are covered by the evidentiary material available before a prosecution is conducted.

It is hoped that this article which has been prepared by my Cybercrimes Unit in consultation with me will provide clarity on the legal issues going forward in the public domain.  (This dissertation should not be taken as proffering any opinion one way or the other on a recent high profile matter which we have taken over and is now under our review.)

Paula V. Llewellyn, Q.C.  
Director of Public Prosecutions