The House of Assembly sent the Cybercrime Bill to the Senate for final approval on Tuesday, with Attorney General Dale Marshall touting the draft legislation to replace the Computer Misuse Act of 2005 as a new standard for other jurisdictions to adopt.
Consultants hired to write the Bill under a project by the Council of Europe, the rule of law and human rights organisation, said “Barbados now has the finest legislation on cybercrime anywhere in the region”, Marshall told lawmakers.
He added: “Jamaica, Guyana, Trinidad have new legislation on cybercrime; [the consultants] have said we have the piece of legislation that other countries must now mirror in order to reach our standard. We have done a lot of work in getting this legislation here. We subjected [ourselves] to the greatest possible rigour and we had a discussion with individuals from the Council of Europe who helped us through this process and we examined every single criticism to determine whether the criticism was well-founded or not.
“This is a new experience for us so we went back to the Law Reform Commission and they, in turn, went to the Council of Europe and said, ‘these criticisms have been levelled at our Bill, analyse them and give us your view so we can see if they are consistent with ours’.’”
Several countries, including Barbados, have expressed an interest in becoming a party to the Budapest Convention on cybercrime on which the new legislation is based, Marshall said, adding that the treaty’s adoption is to be considered by ministers.
The Council of Europe’s Budapest Convention sets down definitions of what counts as cybercrime and how law enforcement agencies should cooperate in fighting it. Several states have modelled their own legislation on the convention. According to Marshall, these include England, Canada, the United States and India, all of which recognise that the “state of anarchy” that has been allowed to persist in the world concerning cybercrime must not be allowed to continue.
The AG said the government has considered all the criticisms raised by commentators and found them without merit “because the individuals simply did not understand the legislation as it was drafted”.
He suggested that a detailed examination of the Bill by commentators would reveal that the fears they have encouraged are “more illusory than real”.
“I‘m asking those individuals, instead of glibly saying that we did this or that, look at the law, read it in its entirety,” the Attorney General said as he stoutly defended the Bill.
Marshall said the new legislation is not “rocket science” but is built on the foundation of the 2015 law which was found lacking in dealing with current issues.
He said the cybercrime law underscores the importance of authority and gaining permission for publishing certain sensitive information which could potentially hurt a person’s reputation.
Painting a graphic analogy to parliamentarians, the AG said that someone is likely to more quickly recover from a physical blow than from the blow to their reputation from the circulation of explicit photographs or videos posted to the Internet and left “forever floating about in cyberspace”.
“Things that they may have done in the innocence of youth will haunt them forever,” he declared, vowing that the new law would hold perpetrators accountable for what they do “intentionally and recklessly and without authority”.
Amid criticisms that the Bill could curtail fundamental rights, Marshall insisted that the Mia Mottley administration must strike a “balance” between rights and responsibilities.
The draft legislation is designed to protect those people whom the government has a solemn right to safeguard, he declared.
The AG said there was much misunderstanding about the law’s intention.
“Much of what has been said revolves around the notion that this government is seeking to place a statutory fetter or muzzle on the freedom of speech of Barbadians. They have alleged that this alleged muzzle would redound to the benefit of the political class because it is intended to deprive the right-thinking public of Barbados of the opportunity to criticise the government. Nothing could be further from the truth,” he sought to assure.
Marshall stressed that Barbados is still governed by the supreme law of the land – the Constitution of Barbados – which protects fundamental rights and freedoms but also gives Parliament the power to make laws for the “peace, order and good government” of the nation.
“We are not at all intending, nor is it our aim, to abrogate anybody’s right to speak, to take away anybody’s freedom of speech but we must always remember that a state and a government exists to protect its people,” he explained, referencing the rights and freedoms protected under the Constitution.
“What freedom of speech should we guarantee where an individual has sex with a 13-year-old, videotapes it and broadcasts it all over the Internet? What freedom of speech is to be protected when individuals intentionally publish malicious information? This State has a solemn duty to protect individuals against conduct that is calculated to cause them harm or may result in causing harm.”
Maintaining that politicians have a responsibility to represent and protect their constituents’ interests, Marshall noted that social media thrives on misinformation and has no filter to shield users from potential harm. He charged that the offenders hide behind anonymity, saying what they feel to, with no regard to the harm that it may cause. This, he said, includes those who live overseas.