KINGSTON, Jamaica — Director of Public Prosecution, Paula Llewellyn has today sought to explain the concept of malicious communications in cyber space and aspects of the Cybercrimes Act.See explanation in full below:

This comes on the heels of the arrest and charging of co-founder of the rights movement Tambourine Army, Latoya Nugent. Earlier this week, Nugent disclosed that she’s contemplating a constitutional challenge of the provision of the Cybercrimes Act under which she was arrested and charged last week.

Nugent was charged with three counts of using a computer for malicious communication under section 9 (1) of the Cybercrimes Act of 2015.

“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,” Llewellyn stated.  

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 amongst 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 characterized 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 categorized 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 for 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 sub…