Tenesha Myrie | Folly of the Cybercrimes Act

The recent events surrounding the #saytheirnames campaign, which calls on survivors of sexual violence to name their abusers, and the arrest and detention of human-rights activist Latoya Nugent for breaches of the Cybercrimes Act for reportedly naming alleged perpetrators, call into question the use of the criminal law to address claims of defamatory speech.

The events also shed light on the way in which the legal system treats with victims of sexual violence and the dictates that are made regarding when, how, and to whom they speak about their experiences of violence.

The discomfort surrounding the #saytheirnames campaign has resulted in some insisting that survivors should only say the names of perpetrators to the police and state agencies, and experts advising of the risk of lawsuits for defamation. Such viewpoints bring into focus the common-law rules regarding recent complaint and the dilemma in which victims of sexual violence are placed regarding when, how, and to whom they speak of their experiences.

These rules allow a woman who says that she is a victim of sexual violence to give evidence that she told someone about what happened as soon as she was reasonably afforded the opportunity to do so. The evidence of recent complaint at common law is not admitted for the truth of its contents, but to show consistency between the evidence currently given and the earlier complaint. Such conventions originated from an understanding that a woman who reports to the police that she was raped must have also raised an alarm. She was required to have told someone, ANYONE, that she was raped. If she did not do this, she could not be believed and could have no legal redress for rape.

Antigua and Barbuda, Bermuda, and Trinidad and Tobago have abolished these rules while Barbados and Guyana provide legislative guidance on how these rules are to be used. Jamaica still subscribes to these rules.

Defamation Act

Falsely naming an alleged perpetrator of sexual violence carries a likely harm to that person's reputation. Where a person's reputation is harmed by the publication of defamatory matter, the 2013 Defamation Act allows for an award of damages. It does not allow for criminal prosecution.

The Defamation Act is meant to provide fair and effective remedies and to ensure that there are no unreasonable limits on freedom of expression. This approach acknowledges freedom of expression as the cornerstone of any democratic

society. The right to freedom of expression is fiercely protected by Section 13 (3) (c) of the Constitution of Jamaica and by the human-rights treaties Jamaica has ratified, in particular, the American Convention on Human Rights and the International Covenant on Civil and Political Rights.

The use of the Cybercrimes Act, in particular, Section 9, which makes it an offence to use a computer for malicious communication, appears to be an attempt to criminalise defamation through the back door. Within this context, it is couched in terms that appear to be vague and overly broad. It imposes disproportionate

measures with penalties ranging up to $5 million or imprisonment for up to five years if convicted in the parish court, and a fine or imprisonment up to 20 if convicted in the Circuit Court.

To be subject to these penalties, one must have used a computer to send data to another person that is obscene, constitute a threat, or is menacing in nature, and one must have done this with the intent to harass or cause harm, or the apprehension of harm to any person or property.

The developing standards under international human-rights law recognise that defamation should not be considered as a computer crime and penalties for acts of defamation should not be aggravated in exclusive consideration of the technological medium used to carry them out. Such use of the Cybercrimes Act to criminalise defamatory speech undermines the advances made under the 2013 Defamation Act. This is inconsistent with the developing standards under international human rights law, and is incompatible with a democratic society.

The State's selective use of the Cybercrimes Act to arrest and detain a human-rights activist has also not gone unnoticed. Still fresh in our minds is the mere 'warning' given by the police in respect of the recent reported threats of rape and death made on social media against Member of Parliament Lisa Hanna for expressing a certain view.

- Tenesha Myrie holds a Master of Public Policy from the University of Oxford and is an international human-rights lawyer based in Washington, DC. Email feedback to columns@gleanerjm.com or tenesha.myrie@oxon.org.