THE Ministry of Science, Energy and Technology is proposing a tweak of the 2015 Cybercrimes Act so that people who transmit or post data resulting in psychological harm to others could be found guilty of an offence, whether or not the information is of an obscene nature.

The proposed new provision in the Cybercrimes Act (2015), which addresses the use of computer for malicious communication, makes it an offence for people to use a computer to publish data to, or about another individual with the intention to harass an individual or cause harm, or the fear of harm to that person or his/her property. This includes posting, sending, transferring, disseminating, or otherwise providing access to the data.It would also apply to any communication relating to industrial action, in the course of an industrial dispute.

In determining whether the data would cause harm, the court may take into account factors such as the context in which the data was sent; the characteristics of the recipient of the data such as age, sex or relationship to the sender of the data; content; the frequency with which the data was published; the extent of circulation of the data; and whether the defendant took any steps to retract the data after it was published, or took any other action to mitigate the harassment or harm.Stakeholders, such as the Office of the Director of Public Prosecutions, have cautioned that the section, as is, was too prohibitive as its reference to data that contains obscenity or is menacing in nature was too vague.

Assistant director in the Ministry of Legal and Constitutional Affairs, Andre Bascoe noted at Thursday’s virtual meeting of the joint select committee on the 2015 Cybercrimes Act that some of the terms were also deemed unconstitutional in various other cybercrimes legislation. The proposed new section is supposed to be technologically neutral in the types of data it criminalises, focusing on the intent to harass or cause harm to any person or property.

The section in its current form criminalises the use of a computer to send to another person any data that is obscene, constitutes a threat, or is menacing in nature; and intends to cause, or causes, annoyance, inconvenience, distress, or anxiety to the recipient, or any other person.

Offenders also can’t use the excuse that the recipient of the offending data was not the person to whom it could cause harm, a defence which Bascoe pointed out is used in some jurisdictions. In those cases persons send malicious data to one party, with the knowledge that it would also come to the attention of the person to whom the harm was targeted.

Consideration is also being given to increasing the penalty under the section, which is currently set at up to $4 million, on conviction in a parish court for a first offence, or a maximum prison term of four years if it is determined that any damage, other than psychological injury, resulted from the offence.It is further proposed that in the case of a second or subsequent offence, a fine not exceeding $5 million or imprisonment for a term not exceeding five years be imposed, regardless of whether any damage is caused. Furthermore, on conviction on indictment before a Circuit Court for a first offence, offenders could face a fine or imprisonment of up to 10 years for non-psychological injury, and up to 20 years if found guilty of a second or subsequent offence, whether or not the victim suffered any damage.The committee, which is chaired by portfolio Minister Daryl Vaz, is making changes to the legislation which repeals the 2010 Cybercrimes Act. The offences in the Bill include computer-related fraud or forgery, the use of computers for malicious communications, and tipping off the subject of investigations. It also provides for forfeiture of computer material used in the commission of an offence.