RSF concerned by certain provisions of Trinidad and Tobago's Cybercrime Bill

May 12^th, 2017

Hon. Dr Keith Rowley
Office of the Prime Minister
13-15 St Clair Avenue
Port of Spain
Trinidad & Tobago

Re: Cybercrime Bill

Dear Prime Minister Rowley,

Reporters Without Borders (RSF), an international organisation that defends freedom of information, would like to express to you its concern about the proposed Cybercrime Bill currently under consideration in Parliament.

We do not dispute the principle of this law. The Internet should not escape government regulation altogether, and we believe that it is perfectly legitimate to proscribe conduct such as computer fraud, identity theft and—even more serious—child pornography.

However, we regard some of the provisions in this law as extremely damaging to the free flow of news and information and as harmful to public debate.

For example, Section 8(1) states: “A person who intentionally and without lawful excuse or justification accesses a computer system without authorisation, or by exceeding authorised access, and obtains computer data commits an offence.” Offenders can be sentenced to up to three years’ imprisonment and mandated to pay a fine of up to five hundred thousand dollars.

This section could pose an obstacle to the freedom of the press. Specifically, it could be used to penalise journalists and media organisations for publishing reports on corporate corruption revealed by a confidential source—even if the journalists earnestly believed that the source was legally able to share information.

We are also concerned about the breadth of the provision’s applicability. The bill lacks a precise definition for the term “authorisation” or the concept of “exceeding authorised access”. Under a broad interpretation, even minor misconduct, including violating a website’s terms of service agreement, might constitute an offence under this provision. This could impede the free flow of information.

Section 12 creates the offence of unauthorised granting of access to computer data that “relates to the national security of the state.” Offenders can be sentenced to up to five years’ imprisonment and mandated to pay a fine of up to five hundred thousand dollars.

Once again, the bill lacks a precise definition for the term “national security.” Such an overly broad legislative area would likely be used to suppress information.

Further, Section 18 prohibits using a computer system to communicate with the “intention to cause harm to another person.” “Harm” is defined as “serious emotional distress.” Offenders can be sentenced to up to five years’ imprisonment and mandated to pay a fine of up to two hundred and fifty thousand dollars.

This language is subjective, and it could, for instance, be used to prosecute reporters who expose criminal conduct committed by a public figure—assuming that the public figure could plausibly assert damaged reputation that caused serious emotional distress. RSF considers laws like this one that might criminalise even mildly defamatory speech to have a chilling effect on the freedom of expression.

Section 18(2) lists several factors that may be taken into account by a Court where relevant in determining if an offence has been committed: “the extremity of the language”, “age and characteristics of the person involved”, anonymity of the communication, repetition, “the extent of circulation”, “whether the communication is true or false” and the context.

While this provision alludes to an eventual exemption if the information communicated was true, such an exemption does not enter into play until an offender has been taken to court, and even then it remains under the complete discretion of the judge to consider such an exemption.

Thus there is a significant risk that journalists and media groups will turn to self-censorship in order to avoid burdensome and expensive litigation under this clause.

The danger posed by each of these provisions is all the greater because the bill provides for wide-ranging jurisdiction and gives the police and judicial authorities broad authority to access the personal data of individuals under investigation. Section 28, for example, authorises the use of remote forensic tools to intercept private data.

For these reasons, we urge you not to pass this bill into law in its present form. We ask you to amend the most sensitive clauses that may impact the freedom of information by including, for example, a public-interest exemption for Sections 8, 12, and 18 and a robust factual-information exemption for Section 18.

We thank you in advance for the attention you give this letter. We remain available to discuss any further questions or concerns you may have.

Sincerely,

Christophe Deloire

RSF Secretary-General

Trinidad and Tobago ranks 34 out of 180 countries in RSF's 2017 World Press Freedom Index.

NOTE: RSF has updated its letter to the Prime Minister of Trinidad and Tobago based on the latest version of the proposed legislation.