With Jamaican authorities unable to lay criminal charges against Kalina Collier — the American airline worker who, after testing positive for the novel coronavirus, made a post which went viral with claims that she was being held by a local hotel which “tried to traffic” her — the island’s Director of Public Prosecutions (DPP) Paula Llewellyn, QC, said policymakers might want to amend the law to ensure that this sort of activity can be criminalised going forward.

As it currently stands, the DPP, while noting that the allegations made by Collier have “damaging consequences to Brand Jamaica” and are “really shocking”, said the 22-year-old flight attendant cannot be successfully prosecuted under the criminal law neither for the offence of creating public mischief nor malicious communication (Section 9 of the 2015 Cybercrimes Act).

“To deal with something like this, the authorities, as a matter of policy, could look to see if there could be a further amendment to the Cybercrimes Act so that it could give the keys of being able to initiate prosecution if something like this occurs,” Llewellyn told the Jamaica Observer yesterday.

“In respect of any possible criminal action, there are two legal avenues that come to mind — the common law offence of creating public mischief; this would not apply when you look at it because, yes, you may have a false statement being made, but there is no material to show that this false statement has been reported to the police in a way that would have caused them to have initiated an investigation; so, therefore, creating public mischief could not be proved,” the DPP noted.

The second avenue, she said, was in respect to section nine of the Cybercrimes Act, but Collier would still be out of the reach of the law.

“There are three ingredients outlined in the Act; the only one we would have is the fact that she used a device to post these statements. What would be missing in terms of the ingredients of the offence would be the fact that it was not obscene. We would not be able to prove that it was done with an intention to cause anything sinister to happen to the entity or any person,” Llewellyn explained.

“As the law stands now, it falls short in terms of the ingredients. There is a central thread that runs through the criminal law, that is that the prosecution has to prove a case beyond a reasonable doubt. But before you can prove the case, the law must provide for it to be an offence,” the DPP said.

“What this young lady is alleged to have done, based on the reports, she has not committed an offence known to the criminal law in Jamaica. The two legal options for consideration would have been creating public mischief or malicious communication, but the ingredients of either offence would not be there in totality; therefore, you could not pursue criminal prosecutions against her,” Llewellyn added.

However, the DPP said, while criminal prosecution might be off the radar, there might be recourse in civil law for the resort and any other entity impacted by Collier’s social media activity.

“This would bring the whole question of whether any entity has suffered and should there be any action because of damage suffered. That entity needs to get the appropriate legal advice to see whether they would be in the best position to pursue civil remedies, given the possible damage they have suffered. The entity, of course, would be the hotel, as well as any other entity that would be in a position to prove that they have suffered damage,” she stated.

Yesterday, attorney Georgia Gibson-Henlin, QC, who specialises in the areas of information technology, telecommunications, and intellectual property, commenting on the matter at the invitation of the Observer, said the hotel referred to by Collier should seek legal advice.

“The better approach is for them to get themselves a lawyer and the lawyer will advise them as to whether any claim can be made in terms of defamation. Looking at it as a business whose reputation has suffered, it could file a defamation claim if all of the elements are there in terms of it not being untrue, and it suffering as a consequence of these statements that were made by the individual,” she told the Observer.

“If it is found out that the statements are not true and affect the business or the company’s reputation, then certainly that is the area in civil law that one would want to explore,” Gibson-Henlin noted.

Collier, in social media recording, said she arrived in Jamaica on January 28 for a short stay. She said a COVID-19 rapid antigen test taken the Saturday before her scheduled February 1 departure returned a positive result.

A second antigen test, which returned a negative result, prompted a request for the more sensitive polymerase chain reaction (PCR) test. This came back positive leading to the hotel indicating to Collier that she would need to go into mandatory 14-day quarantine. Her friends, however, who tested negative would be allowed to leave.

“I knew that I did not have COVID. I am a flight attendant. I never had COVID, then they said you and your friends need to quarantine… we are going to put you in a room. And I am saying, what room, I couldn’t understand why we were being separated,” she said in one recording.

“I am sick to my stomach about what I have endured and what I have went (sic) through here. And this goes to show that these people are so wicked… these people have it coming for them. Why would they do this to me. I am so upset right now, my room smells of garbage, I have bags of food in here, nobody came to take the food from me. This is disgustingly wicked. Yeah, they tried to traffic me; it is going to be a beautiful lawsuit, and yes, you are invited,” Collier said in yet another recording.

Noting that she was not doing the recordings for “clout or for show”, as her family members are from Jamaica, she said “I am suing the pants off this place. I travel all the time. Of course I am suing.”

She went further to allege that she was being spied on by hotel workers, stating “I just found three cameras in my room. I covered them up obviously…you guys have been watching me sleep, shower and shave? Who is getting off on that? That is disgusting.”

Collier, who was subsequently granted medical clearance by the health department and deemed fit to travel, flew out of the island on Sunday accompanied by her mother, who had flown into the island on February 1 to be with her.

Since then, in a post on her Instagram page, Collier said she had “said a long time ago that I was never missing nor was I kidnapped”.

She accused the hotel of trying to get her to make a statement “to save face for them”. Additionally, she said that the matter “will be handled legally”.

The Jamaican police on the weekend warned people to desist from sharing social media posts claiming Collier has been kidnapped, as sharing false information can constitute an offence under the law.

After the video recordings by Collier purporting the kidnapping went viral, tourism executive Delano Seiveright claimed that he started to get death threats “from random people who think she has been kidnapped and that we [are] all covering it up”.

In the meantime, the hotel that hosted the woman and her two friends responded on its social media pages to queries from individuals about the allegations pointing them to the police reports which said the allegations of a kidnapping were baseless and mischievous.