A gruesome double murder took place on June 28 in Trinidad,
in which a 13-year-old boy and his babysitter were found with their throats
slit. Police initially treated the incident as a robbery gone bad, but
subsequently charged the sitter's brother and an accomplice for the murders.The
time in between the discovery of the bodies and the arrests was a distressing
one, with many social media users lamenting the escalation of violent crime in
the c
ountry and venting their frustration at the apparent impotence of the
government and protective services to make a dent in it.
But one Facebook user, Rayad Mohammed, took things to
another level when he suggested that someone should rape and slit the throats
of the family of Prime Minister Keith Rowley. His original status update was
deleted, but blogger Rhoda Bharath made a screenshot of it and shared the post
via Instagram. Mohammed issued an apology, but was ultimately charged with
“inciting violence” under the Summary Offences Act, of which Chap. 11:02
Section 105 deals with contentious “publications”. The charge attracts a fine
of TT $1,000 (approximately US $148) or six months’ imprisonment.
The case raised critical questions for many citizens about
the degree to which the comment was in fact inciting violence. The local
blogosphere was immediately separated into two camps — those who thought
Mohammed deserved to be charged for his reckless post, and those who felt that
charging him with an offence was overly harsh. Facebook user Keith Francis
rejected outright Mohammed's explanation that he was simply trying to express
his anguish over the murders, saying: I didn't know yuh does rise up against
what going on in the country by advocating violent crime. Miss me wid dat shit.
A woman on
television declares that ‘he's being punished for what is going on in society’.
Seriously? That's his defence? So, if some crazy had followed through, their
defence would be, ‘that guy on FB made me do it'?
Barrister and lecturer Dr. Emir Crowne, explained the
original intention of the clause under which Rayad Mohammed was charged: The provision was enacted in 1951….to deal
with the “misuse of telephone facilities and false telegrams.” The legislature
at the time sought to capture offensive messages that may have been transmitted
by landlines and telegrams.
It is a stretch, a
painful one at that, to suggest that online activities are caught by this
section—even if those activities are facilitated through one’s mobile phone.
[…]
To be successfully prosecuted under the
Criminal Law, there must be a statutory wrong. In the absence of clear
statutory language, there can be no criminal wrongdoing. […] Indeed, if so-called cybercrimes were caught
under this section—and others—there would be no reason for specific cybercrime legislation
in the first place. Attorney Daniel Khan posted a video to his Facebook page In
the Pursuit of Justice DK, in which he asserted his position that the comment
was “was not a threat, it was not inciting, it was not sedition.”
He argued that Mohammed's arrest should have all netizens
concerned: That Facebook post was
disgusting. It was obscene, it was profane, and there's no defending that. […]
But let's put emotions aside: that person committed no offence….He has been
taken into custody and not released until three days later because his lawyer
filed an application to court — and that is the scary thing. There are markers
in society where we could say on this date, society went in this direction [….]
we may be moving into [an] oppressive and dictatorship society and there'll be
no turning back.
Khan even suggested that “people over 40″ may not understand
the internet and social media, and advised that the government and police
service “get out of Facebook”.
Mohammed, he insisted, was simply expressing his
frustration: He was fed up with
crime….[expressing concern that] those that have the authority….to address the
crime situation perhaps do not feel such an urgency because they are surrounded
by security where crime may not affect them.
Khan believed that Mohammed's arrest infringed upon his
individual right to express criticism of the government. That freedom to
criticise is what many are concerned about when it comes to Trinidad and Tobago's
draft cybercrime legislation.
Case revives discussion over Cybercrime Bill
In a preliminary response to Rayad Mohammed's comment, the
national attorney general (AG) publicly suggested that Mohammed could be
charged under the country's cybercrime legislation. What the AG might not have
made clear in his statement, however, is that this legislation is currently in
draft form and has not yet been approved or enacted. In fact, the government
recently invited commentary on the latest draft. In the current draft, Section
18 (1) of the Cybercrime Bill 2017 criminalises anyone who “uses a computer
system to communicate with the intention to cause harm [i.e. emotional
distress] to another person”.
Factors such as anonymity, “the extremity of the language”,
the reach of the communication, its context and veracity would all be taken
into consideration, but the offender could be subject to fines of up to TT
$250,000 (US $36,904), as well as five years in jail.
Some Facebook users have interpreted parts of the bill as an
attempt by the government to control the internet. Tech blogger KnowProSE.com
liked “the spirit of the [cybercrime] bill”, but had recommendations to improve
it, including technology education for the police and the legal profession, the
need for criminal intent to be established if laying charges, the need for
independent audits, the protection of individuals’ privacy, and the importance
of having different criteria for first time as opposed to repeat offenders.
Journalist Mark Lyndersay shared his concerns about the
bill's potential impact on his profession, explaining: The 2017 edition of the bill tidies some
issues, but leaves others in place in a way that’s clearly intended to punish
without overdue attention to the consequences for communicators and activists…
The Media Association of Trinidad and Tobago (MATT) and the
Trinidad and Tobago Publishers and Broadcasters Association (TTPBA) have also
expressed reservations about the bill, saying that it had to potential to
“criminalise journalists”.
Centre for Law and Democracy's senior legal officer, Michael
Karanicolas, explained: Overbroad content offences are always illegitimate, but
are particularly dangerous online, where many people are still in the process
of discovering their voice. The Bill, if passed in its current form, could have
a substantial chilling effect on online speech in Trinidad and Tobago.
The twin island republic is not the only regional territory
to wrestle with cybercrime legislation. In a recent case in Jamaica,
authorities sought to convict a women's rights activist under that country's Cybercrimes
Act for “use of a computer for malicious communication” as part of a campaign
against gender-based violence. Charges against activist Latoya Nugent were
dropped after the Director of Public Prosecutions (DPP) deemed that it was “not
a viable prosecution”. That dangerous potential for censorship and abuse, many
feel, outweighs the outrage that a poorly expressed rant like Mohammed's can
generate.
Dr. Emir Crowne, who wrote a post for Wired868 about the
problematic aspects of the Cybercrime Bill, summarised the issues this way: The Bill is an ongoing recognition of the need
to protect the citizenry against cybercrimes. In many ways, it is a paradigm
shift in the way criminality is traditionally viewed.
However, in
addressing this new avenue for criminality, care must be taken to draft
legislation that is precise, impairs constitutional rights as least as
possible, and sets out clear defences and exceptions, especially where personal
liberty is at stake.
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