Clarity on Cybercrimes legislation
THE EDITOR, Sir:
In your editorial of Sunday, March 19, 2017, The Gleaner referenced Section 9 of the Cybercrimes Act, which deals with the "use of computer for malicious communications". Unfortunately, you referenced an incorrect version of Section 9, which was not passed in Parliament.
After the Joint Select Committee (of which I was chairman) report to review the legislation, further amendments were made to Section 9 (1) to address concerns raised about the wording of the clause and the view that it was too broad and subject to varied interpretations.
The wording "or is reckless as to whether the sending of the data causes annoyance, inconvenience, distress, or anxiety to that person or any other person" was deleted from the clause.
It is important to note that Section 9 - (1)(a) and (1)(b) is conjunctive and must be read together. Hence, for an offence to be committed, the data sent must be obscene, constitute a threat, or is menacing in nature AND (my emphasis) with the intention to harass any person or cause harm, or the apprehension of harm, to any person or property.
The correct version of Section 9 is below. This is also on the website of the Parliament: http://www.japarliament.gov.
9. (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) that is obscene, constitutes a threat, or is menacing in nature; and
(b) with the intention to harass any person or cause harm, or the apprehension of harm, to any person or property, but (for the avoidance of doubt) nothing in this section shall be construed as applying to any communication relating to industrial action, in the course of an industrial dispute, within the meaning of the Labour Relation and Industrial Disputes Act.
2) An offence is committed under subsection (1) regardless of whether the offender intended the data to be sent.
Subsection 3 deals with the sanction. In summary, it states that a person is liable on summary conviction before a RM to:
- a fine not exceeding $4 million or four years' imprisonment (in the case of first offence).
- a fine not exceeding
$5 million or five years' (if any damage is caused or on a second or subsequent offence).
In the Circuit Court, the person is liable to a fine, whether it is a first or second/subsequent offence or damage is caused, or imprisonment for 10 years (first offence), 15 years (if damage is caused), or 20 years (second/subsequent offence).
JULIAN J. ROBINSON