The Cybercrimes Act has received much attention lately. In particular, the recent charges brought against a social justice activist under section 9 of the Act (concerning the use of computers for malicious communications).

More particularly, subsection (1) of the Act 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.”

Someone charged under section 9 must therefore satisfy both elements. The first element appears objective in nature in that the communication must “objectively” be viewed as obscene, threatening or menacing in our society. The second element, however, speaks to the causing of an annoyance (and the like) to “that person or any other person”. This suggests that it has a strong subjective element to it.

In my view, the section is overbroad and treads on several constitutional rights.

Consider a simple example. If I post on social media that: “Anyone with steel-tipped boots would be entirely right to kick pit bulls. One tried to attack my daughter last week and, thankfully, I was wearing mine. I wear my boots every day now just in case I see one!” This comment is at least menacing in nature, if not a threat. It would also cause considerable distress and anxiety to dog owners throughout the island. Both limbs of section 9 are made out and I have, apparently, committed a cybercrime.

Therein lies the rub. Section 9 appears to criminalise constitutionally protected speech.

The constitution safeguards and guarantees freedom of expression, freedom of thought, and “the right to seek, receive, distribute or disseminate information, opinions and ideas through any media”. It safeguards unpopular speech with just as much force and anxiety as it does popular or mainstream speech.

One could hold very strong views about religion, sexuality, immigrants, and refugees that may amount to a “threat” or may be “menacing” in nature; and such opinions would undoubtedly annoy, inconvenience or distress people within those groups. Is that speech now criminalised as a cybercrime if posted online?

Section 9, as well-intentioned as it may have been, is undoubtedly overboard and provides no exceptions or safeguards against encroachment on such constitutional rights. Without commenting on the specifics of any particular matter, the larger issue is the apparent unconstitutionality of the section and the impact it may have on the free exchange of ideas and opinions in Jamaican society.

Dr Emir Crowne is an attorney-at-law and senior lecturer at The University of the West Indies, Mona Campus. He teaches both technology law and tort law. Send comments to the Observer or info@crownes.ca