By Caribbean News Now contributor
ROAD TOWN, BVI -- In moving the second reading of the Computer Misuse and Cybercrime Bill in the British Virgin Islands House of Assembly, Premier Dr Orlando Smith said that the bill has been erroneously portrayed as innovative and designed to muzzle the right to free speech and the freedom of the press.
Premier Dr Orlando Smith
“The truth is: the bill is about none of those matters,” Smith said.
Last month, the International Press Institute (IPI) said that the bill, which seeks to punish the publishing of sensitive computer data with 20 years in prison, should be amended to include a public-interest exception in order to avoid a chilling effect on legitimate journalistic activity.
"While the protection of privacy and secrecy can be a reasonable government aim, we fear that the wide net cast by this bill could lead to the criminalisation of legitimate journalistic activity in the British Virgin Islands," IPI press freedom manager Barbara Trionfi said. "It is vital that the House of Assembly amend the Computer Misuse and Cybercrime Bill to include a clear exception for information in the public interest, as journalists must be free to report on issues that affect democratic accountability."
Referring to what he described as “the media hype generated both locally and internationally”, Smith said he had deliberately allowed sufficient time to elapse before the second reading of the bill primarily to enable broad public consideration of the provisions of the bill.
“After a careful review of the views that have been expressed with regard to the bill, I have come to the considered position that we must proceed with the enactment of the bill,” he said.
Under Section 13 of the proposed Computer Misuse and Cybercrime Act, anyone who publishes unlawfully obtained information from a "protected computer" -- defined as containing data related to the national security, international relations, and "financial services businesses", among others, of the BVI -- faces up to 20 years in prison and/or a fine of US$1 million. In addition, anyone who publishes information irrespective of content "which he or she knows or ought reasonably to have known" was illegally obtained from a computer risks 15 years in prison and/or a fine of US$500,000.
The strictest punishments are reserved for those who actually obtain data from computers without authorisation. Section 9 punishes the copying, transferring, or sharing of data "held in any computer for a specified or general lawful purpose" with 20 years in prison and/or a fine of US$1 million. This punishment is tripled if the data in question come from a "protected" computer, resulting in a potential prison term of 60 years and a fine of US$3 million.
The initial tabling of the bill came just weeks after the International Consortium of Investigative Journalists (ICIJ), in cooperation with The Guardian newspaper in London, revealed that relatives of China's political leaders were secretly storing wealth in BVI offshore corporations. This and similar reports published by ICIJ over the past year relied on secret files leaked from financial-services firms.
If approved by the BVI House of Assembly, the act would apply to "any person ... within or outside the Virgin Islands" using computer data either in the Virgin Islands or located somewhere else but "related to data regarding a national security matter or a financial services business [of BVI]".
Trionfi noted that the bill not only punishes the dissemination and publication of child pornography less harshly -- 10 years in prison or a fine of US$250,000 -- but also provides what is essentially a public-interest exception, exempting pornographic material used for a "bona fide scientific, research, medical or law enforcement purpose."
"It is not clear why the bill declines to provide the same kind of public-interest guarantee for the use of computer data even though it is easy to imagine how information about such data could be publicly relevant," she said.
Trionfi added: "We are also concerned that the disproportionately harsh punishments foreseen by this bill, as well as a lack of specificity as to which information is protected, will contribute to a dangerous chilling effect on the media."
However, according to Smith, the bill is not necessarily a new feature of BVI legislation and what the bill contemplates is already law in a number of other jurisdictions, although the provisions have been “augmented” to suit local circumstances.
“In 2007 the then Legislative Council enacted amendments to the Criminal Code, 1997 and introduced a new part to specifically criminalise computer and computer-related offences,” he pointed out.
Amongst the offences outlined in the 2007 amendments were those relating to illegal access to computers, interfering with data stored in a computer (including interfering with a computer system), unlawful interception of computer data, dissemination of unlawfully acquired computer data, producing, selling, procuring for use, importing, exporting, distributing or otherwise making available a device or computer programme or password for purposes of committing an offence, and child pornography.
“There was no media or other concern at the time and in the ensuing years since the enactment of that Act. There is no evidence of witch-hunting anybody or any institution,” Smith said.
“In this modern age where a lot of business and other transactions are driven or facilitated by technology, it is considered imperative that an appropriate legislative framework is developed and enacted to properly preserve the integrity of business organisations and transactions as well as ensure appropriate deterrence to activities considered inimical to national security,” he continued.
Smith confirmed that the bill is designed to have broad application and it effectively applies to every person irrespective of his or her nationality and whether or not he or she is resident within or outside the BVI.
“This is considered important as interference with computers could be originated within or outside the Virgin Islands and by any person. Thus if a person commits an offence under the Bill, he or she may be dealt with as if the offence had been committed in the Virgin Islands,” he said.
Smith went on to outline what he said the bill is not:
(i) This bill is not about protecting secrecy or shady dealings as some would have the rest of the world believe; the BVI has no secrecy laws in this territory and never had any. The BVI simply subscribes to the common law principle of confidentiality and adhere to treaty obligations as regards maintaining confidentiality in matters relative to mutual legal assistance, including the exchange of information;
(ii) This bill is not about witch-hunting anybody or an attempt to breach the constitutional rights of any person;
(iii) This bill is not about muzzling the press, and press freedom continues to be respected and upheld in this territory within the bounds of the laws, as is the case with every citizen’s right to express himself or herself;
(iv) This bill is not about any attempt to cover up any act of corruption. In 2006 the Criminal Code, 1997 was amended to completely revise and enhance the anti-corruption and anti-bribery laws of the territory in accordance with the United Nations Convention against Corruption;
(v) This bill is not about preventing anybody from making a disclosure to a law enforcement authority about any suspicion of the commission or of an attempt to commit an offence. Indeed disclosures to law enforcement are protected; and,
(vi) This bill is not about restricting or prohibiting in any way any owner or institution in the BVI from giving lawful authority in relation to the use of a computer in respect of which it has ownership and which does not constitute a protected computer.