107 responses to “Bajans, ignore Cybercrime Bill 2024 at your peril”

1. 

   David

   May 19, 2024 at 4:48 am

   
   

   Again the question, why would the Bar not have commented before the Bill was debated in the lower house?

   MORE TIME ON CYBERCRIME

   Committee given extension to go over suggestions from public

   By Barry Alleyne barryalleyne@nationnews.com

   The Joint Select Committee of Parliament has been granted extra time to analyse a number of submissions made to it on the Cybercrime Bill, 2024.

   Forty submissions have been received by the committee since it started its work on April 8, and the seven-member body felt it needed more time to deep dive into suggestions and recommendations of Barbadians.

   It will now present its findings on June 14.

   The revelation comes from the chairman of the committee, Edmund Hinkson, SC, in the wake of the entity being told by this country’s legal fraternity to go back to the drawing board with the Cybercrime Bill.

   Started last month

   The committee had been originally given 90 days to conclude its work from March but only started last month and heard its final oral presentation, from Minister of Industry, Innovation, Science and Technology Marsha Caddle, last Monday.

   In a letter sent last week, the Bar Association said the current iteration of the Cybercrime Bill was flawed and could end up being challenged legally.

   Yesterday, Hinkson confirmed receipt of the Bar’s correspondence but said he could not comment on the details of the letter. He did note, however, that the committee would take the recommendations seriously and they would be discussed this week.

   “I’ve read the letter and I have also had a conversation with Sir David Simmons, who is the chairman of the Law Review Commission, on that particular concern of the Bar Association,” Hinkson told the Sunday Sun.

   “I wouldn’t want to say much more about the Bar’s submission without analysing it some more.”

   The Joint Select Committee is set to meet again on Thursday.

   “At Thursday’s meeting, I would be able to bring proposals or recommendations regarding what the Bar Association sent us.”

   Hinkson said he was only one of seven, and all submissions would be thoroughly perused by the entire committee, which comprises both Government and Opposition members.

   He also revealed that the Senate had extended the Joint Select Committee’s timeframe in which it could receive submissions and present reports. The original date for conclusion was May 16.

   “We have received three more submissions, inclusive of the one from the Bar Association,” Hinkson noted. “This is good because the Cybercrime Bill has created great public interest. That is what we wanted.”

   A new submission has also been received from the Barbados Association of Journalists and Media Persons.

   When contacted yesterday, Barbadian cybercrime expert Niel Harper, who made a presentation to the committee to indicate his many issues with the bill last month, said he felt vindicated now the Bar Association’s concerns were also ventilated.

   “I’ve read the report from the [Bar] and it touches on several of the comments that I’ve been making over the last six months which [Government] said were invalid. This includes concerns about the absence of safeguards and protections for human rights, the problematic nature of criminal defamation, and the need for independent judicial or non-judicial remedies, among others,” Harper said by telephone from Berlin, Germany.

   “I am happy to see that experienced legal professionals share a similar unease to myself about this bill. The Joint Select Committee must allow the Bar Association to make an oral submission that is publicly aired, and should also recommend that an expert working group be formed to provide substantive amendments to the bill before it is passed.”

   Source: Nation

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2. 

   David

   May 19, 2024 at 4:55 am

   
   

   Group: We will keep protesting bill

   Some critics of the Cybercrime Bill, 2024, vented their concerns in a public demonstration in Independence Square, The City, yesterday afternoon.

   The protesters branded the proposed legislation a mechanism of “Government control, designed to silence political opponents and suppress criticism”.

   The activists, led by Marcia Weekes and people who called themselves the Loyal Opposition, held a number of placards, some of which read: No Cyberbill Can Silence Me; I Gone Talk My Talk; Social Media Users, Cyberbill Targets You; and Cybercrime Or Not. Don’t Touch My Phone.

   Speaking with the

   Sunday Sun, Weekes said the demonstrators would continue to raise their objections to aspects of the bill which they viewed to be an infringement on constitutional rights.

   “I think it’s very important for our dignity as a people that we continue to speak out; it’s our democratic right. We’ve been called many, many labels . . . .

   “We’ve been called anarchists and all kinds of different things, or that we are causing disorder in the country, but we will continue to use our democratic rights. If we believe our freedom of expression and our freedom of speech are being infringed upon, we must speak. We are humans and it’s our human right,” she said.

   The criticisms of the Cybercrime Bill were detailed in a statement, written and prepared by the protesters and handed to the media.

   In the document the protesters recommend that the bill be amended or repealed in a way that clarifies offences, safeguards freedom of expression, and ensures reasonable penalties and prevents harassment or intimidation.

   “While the intention behind the bill to protect individuals from cyberbullying, pornography and defamation is commendable, there are grave reservations about certain provisions that are perceived to be overly broad and potentially infringing on fundamental rights, particularly the right to freedom of expression,” it stated.

   It also pointed to vague, obscure wording which criminalised various online expressions, and alluded to “political affiliations and jeopardising the rights of individuals such as cybersecurity professionals, journalists, researchers, activists and whistleblowers”.

   It also questioned the bill’s definition of cyberbullying as encompassing a wider range of expressions such as “anxiety” and “embarrassment’. The protesters are arguing that this expansion introduces subjectivity into what constitutes cyberbullying, potentially leading to inconsistencies and challenges in enforcement and interpretation.

   The statement continued: “Approximately onethird of global Internet users are children and adolescents under 18. Young people are particularly vulnerable as they may not fully comprehend the link between their actions and the resulting consequences. Hence it’s very likely that a high proportion of offenders falling under the cyberbullying, Section 20 of the bill, will be under-age individuals and youth.” (JRN)

   Source: Nation

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3. 

   David

   May 19, 2024 at 5:02 am

   
   

   Lawmakers must get ‘cybercrime language right’

   The Barbados Bar Association (BBA) is warning that unless the language of the proposed Cybercrime Bill 2024 is changed it will be open to challenges.

   The lawyers’ body is the latest critic of the contentious Cybercrime Bill, 2024 on which debate was halted when it, and the Mutual Assistance in Criminal Matters (Amendment) Bill 2024 reached the Senate in February and was instead referred to the Joint Select Committee (Standing) on Governance and Policy Matters. The committee wrapped up public hearing on the matter this week.

   “The [Law Reform and Legislation] Committee concludes that the level of debate and interrogation of this Bill to date has been inadequate given the very serious power which is being vested in the state and in private individuals in matters protected by the Constitution, that is to say, the rights to privacy and expression. Unless amended, the Bill will inevitably face challenges in the Courts” the BBA stated, in its report to the committee.

   The BBA said it recognised the importance of a statutory regime of rules of conduct and acceptable standards for the Internet, computers, and related digital technologies and that the laws enabled investigation and prosecution of online crime and facilitated cooperation between countries.

   Freedom of speech

   However, it said, it was equally important to balance and protect the fundamental rights and freedoms of citizens such as freedom of speech and expression as enshrined in the Constitution.

   “The public of Barbados is entitled to expect responsible and proper exercise of public power, which is fundamental to the operation of the rule of law,” the Bar said.

   The association tackled the offences that extended to “illegal access of computer systems, unauthorised, intentional or reckless modification of a programme or data, unauthorised, intentional or reckless interference with a programme or data or computer system intentionally, recklessly and without authority receiving or giving access to computer programmes or data (s 13); illegal interception of data by a person (S.8), misuse of devices (section 9 is open-ended), access with intent to commit further offences, disclosure of codes, interfering with critical infrastructure systems as defined with the Act (s 12), committing computer related forgery as defined within the Act (s 14), committing computer related fraud as defined within the Act (s 15), child-related offences of online child sexual abuse (s 18), child pornography (s 16), child grooming (s 17), cyber bullying applicable also for the protection of adults (s 20) (perhaps there have been amendments in the Sexual Offences Act), cyber terrorism (s 21), aiding and abetting (s 22).

   Malicious communication

   In relation to the much debated malicious communication, the Bar said the Council of Europe promoted the abolition of criminal defamation “as not only repressive regimes abusing its use to limit freedom of expression but also western, democratic governments are doing the same against journalist bloggers, investigative journalists, campaigners/advocates, whistleblowers, comedians and satirists, artists who have the important role of participating in public affairs as public watchdogs, encouraging the accountability and transparency” of public figures.

   The Bar said that a 2023 report update, SLAPPS: A Threat To Democracy Continues To Grow,

   indicated that there were more than 570 private censorship cases in Europe over a ten-year period and a draft EU directive protected those in public participation from manifestly unfounded or abusive court proceedings.

   “Based on public comments circulating in Barbados, there appears to be a public perception that section 19 (3) may be used by public figures to curtail freedom of expression. Just in October, 2023, Barbados brought into force the Prevention Of Corruption Act, 2021-24 which by section 21 incorporated the United Nations Convention Against Corruption (adopted in 2003). Thus, section 19 (3) appears to be incongruent with the legislation recently brought into force. Article 13 of that convention requires states to bring into domestic law the ‘active participation of individuals and groups outside the public section . . . in the prevention of and the fight against corruption and to raise awareness of the threat . . .’.

   The Bill is open to challenge constitutionally because the word “embarrassment” introduced the interpretation of statements by a complainant which causes a subjective “feeling” and hurt feelings without reputational damage are not protected by the Constitution.

   In addition, the seven years imprisonment penalty may only be imposed by an independent court, which for the purposes of the Constitution, can only mean the High Court because judges enjoy constitutional protection of their tenure in office, while magistrates do not and are responsible for dealing with minor criminal matters, the Bar pointed out.

   It was also concerned that there were three defences to receiving or giving unauthorised access to computer programme/data, none of which gave the press nor their sources any particular defence where receiving data is in the public interest.

   “Neither does the Whistle-blower Protections Act, 2021-29 create any opportunity for the press to be protected if they receive computer data they should not have received yet such data are in the public interest.

   In view of the fact that we currently do not have an explicit section protecting the press in the Constitution, in the interests of freedom of expression, the press should be given a special defence under Section 13 (2).

   (AC)

   Source: Nation

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4. 

   David

   May 19, 2024 at 5:04 am

   
   

   Lobbying matters

   I wish to commend the Minister of Industry, Science and Technology Marsha Caddle for her bold, yet humble representation last week to the Joint Select Committee regarding the Cybercrime Bill 2024 (“the Bill”), where she recommended that certain definitions within the bill that have been the subject of much public debate and contention, be replaced.

   As the minister who had originally introduced the bill, it was bold and beautiful of her to accept that certain aspects of the draft were disconcerting and then recommend those changes. She displayed the empathy and engagement that is vital for good and effective leadership.

   In my mind, balancing interests means not only implementing laws that govern, but also giving due weight to the legitimate concerns expressed by those who will be most affected by the laws. I will return to this point later.

   I must also applaud the efforts of social activists Marcia Weekes and Caswell Franklyn who steadfastly maintained their opposition (and protests) to certain portions of the bill they felt oppressive. It was their lobbying efforts that brought to the spotlight aspects of the bill most would never have known or read (myself included). Their efforts educated the public, highlighted the concerns of many and no doubt influenced some of the proposed amendments.

   I am generally cautious about new legislation that attaches heavy penalties for breaches, particularly where the imposition of the penalty is left to the discretion of those charged with enforcing its provisions. Humans may do their best, but discretion is often subjective, especially in the absence of clear guidelines on how to apply the discretion.

   Examples of this were seen during the pandemic, where initially the penalties for the breach of the emergency directives appeared to be inconsistent with complaints that tourists were getting lighter penalties and overly harsh punishment being applied to locals (including one unfortunate incident where one such person died while imprisoned).

   This was eventually corrected, but those who were penalised in the early stages were in effect “collateral damage” as we navigated the more balanced enforcement of the legislation.

   ‘Collateral damage’ If we can limit the “collateral damage” that can occur from new legislation, then this should be done. This is best done through genuine consultation with key stakeholders and giving due consideration to objections and criticisms raised. In times past, lobbying efforts have impacted legislation. This occurred with the amendment to the Severance Payments Act during the pandemic to give business owners some ease by temporarily increasing the qualifying period for severance. Some would say it was lobbying that stalled the Integrity legislation for some time. But, lobbying is only effective when legislators truly consider the views of the relevant stakeholders and have the necessary consultations.

   During a panel discussion held last week by the Barbados Employers Confederation, acting High Court Judge, Madame Justice Liesel Weekes, SC emphasised the importance of having the input of relevant stakeholders in all stages of drafting new legislation, including before the draft is commenced. Fellow panellist Mrs. Roseanne Myers emphasised the need for proper consultation on legislation that should be more than just having “a three-hour” meeting. I agree with both positions.

   Insufficient consultation will lead to shortsightedness. If legislation is aimed at correcting or providing guidance on a problem, how can legislators truly do so if they are unaware of the daily issues faced by those in that particular area?

   The input of the major stakeholders will provide relevant guidance on how the proposed provisions may or may not work including difficulties that may occur in enforcing the provisions. This is why I remain baffled at how quickly the Labour Clauses Concessions Bill was passed.

   Despite all the issues highlighted, why wasn’t there also a pause and opportunity for review by a joint select committee with further discussions with key stakeholders?

   Absent consultation we are doomed to take the more reactive approach of fixing things that go wrong. When will we begin discussions on the amendments that are needed to the Employment Rights Act?

   Michelle M. Russell is an attorney with a passion for employment law and mental health. Email: mrussell.ja@icloud.com

   
   Source: Nation

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5. 

   The OG

   May 19, 2024 at 9:23 am

   
   

   Some think the BBA was late, I think they were strategic.

   Imagine yourself trying to bail out a sinking ship and at the moment that you think that you have manage to keep the ship afloat, you look up and see a two ton rock heading for the ship. The BBA late entry to the discussion and their contribution has killed any sane thought of salvaging this Frankenstein monster. The word sane is important, for this set of law makers are completely mad.

   I have often criticized the BBA. The BBA criticisms still stands but their effort here is commendable.

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6. 

   The OG

   May 19, 2024 at 10:28 am

   
   

   I like and applaud Kemar Saffrey. Does some badly needed work to help the less fortunate. Should be on a national honors list every year.

   However, I would urge him to be cautious; not silent, but cautious. Let government officials defend their actions before jumping out and speaking.

   Keep up the good work, Kemar

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7. 

   Yolande Grant

   May 19, 2024 at 8:35 pm

   
   

   I just dont get why a government could get NOTHING RIGHT…why do experts have to keep telling them basic, commonsense things AFTER another major cockup….looks like they keep begging for a train of lawsuits for violating human rights…how is it that lawyers seem not familiar with this….and what is possible, seems like they still live in a world of delusion believing themselves invincible…

   Have they removed the slave laws and slave codes yet from the statute books, we can ask and make sure they do.

   Source: barbadostoday.bb

   “In the section on malicious communications, Part II, 19 (1-2), he argued that this criminalises normal online discourse and pointed out that Budapest Convention and other model laws do not address malicious communications.

   “Trying to treat the Cybercrime Bill with criminal defamation is very, very problematic because the European Court of Human Rights in the United Nations, and several organisations as well as intergovernmental bodies maintain that criminal defamation laws are an unjustifiable affront to human rights. Several progressive nations have actually removed criminal defamation laws from their books,” he contended.”

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