THE Press Association of Jamaica (PAJ) yesterday expressed concern about section 9 of the new Cybercrimes Act, which deals with an offence referred to as “malicious communication”.

The PAJ, in a release, noted that Jamaica’s Defamation Act 2013 repealed criminal defamation, via Section 7, adding that the country was hailed for this significant legislative advance by groups like the International Press Institute.

“Freedom of expression is a fundamental right that, like many others, is subject to restrictions. Those restrictions include the law of defamation to protect the reputations of others. These are matters for the civil courts,” said the association.

It noted that restrictions were being placed by criminal law on types of speech that incite violence, or are threatening in nature, for example.

However, criminal defamation laws that penalise statements that injure reputation are understood by freedom of expression advocates all over the world to be an enemy of freedom of expression, to have a chilling effect on free speech, and to facilitate the repression of criticism by governments.

Said the PAJ: “When Jamaica’s Cybercrimes Act was being reviewed, representatives from the police and the Office of the Director of Public Prosecutions recommended the inclusion of cyber defamation as an offence. This was strongly opposed by both the Press Association of Jamaica and the Media Association of Jamaica.

“We were of the clear understanding that the Joint Select Committee reviewing the legislation fully appreciated the negative consequences of attempting to reintroduce criminal defamation, albeit to apply in cyberspace. Indeed, on the face of it, section 9 does not appear to allow for charges for statements that may be defamatory.”

The PAJ said recent arrests by the police, on the facts available, make it appear that the police are interpreting the legislation as having reintroduced criminal defamation by the back door.

“The section states that 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,” it said.

The PAJ noted that the penalty in a parish court can be a fine of up to $4 million or four years imprisonment, or $5 million or five years in jail in the case of a second offence or if “damage” is caused. Before the Circuit Court the penalty is a fine and imprisonment for up to 10 years, or up to 15 years if “damage” is caused, or the penalty is up to 20 years in the case of a second offence.

It noted that in one recent case, the Ministry of National Security reported that a woman was charged under the section after she “posted pictures in social media, claiming that her ex-boyfriend is wanted for rape, assault and murder”.

In another case, it said, a women’s rights advocate was arrested after posting on social media sites the names of persons alleged to have carried out various sexual assaults.

The allegations in each case relate to what would, offline, be matters for the civil courts through the law on defamation, and could not be subject to any criminal charge.

“These cases are before the courts, which will decide whether the offence detailed in Section 9 is made out in these specific cases,” the PAJ noted.

“However, we do not believe it serves the public interest for us to remain silent and wait for court rulings which may take several years, and which in any case, may not prevent continued arrests of this type. This will entail arrested persons being exposed to the trauma of arrest, and force them to spend time, and perhaps significant sums of money to defend themselves. Making arrests for what are essentially matters for the civil courts places Jamaica on a steep, slippery slope where freedom of expression is at risk. We do not believe this was the intention of the legislature.

“We, therefore, call on the Jamaican legislature to stand by the principled position by which it abolished criminal defamation. This may necessitate the amendment of Section 9 and introducing words to make it clear that actions which would comprise defamation offline cannot be caught by the section. In fact, the section already specifically carves out one such exception, as it states that:

“…(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 Relations and Industrial Disputes Act.”

It said, too, that is also possible that the Ministry of National Security may wish to ask that a legal opinion on the interpretation of Section 9 and the elements of the offence be prepared for the police to help guide their actions from here.