Grenada’s new Electronic Crimes Act has been getting considerable scrutiny worldwide, especially the criminalising of offensive messages sent electronically or over the Internet.
On Friday, 28 June, the Lower House of Parliament in Grenada successfully passed the Electronic Crimes Act, 2013. However, considerable focus is being given, especially in the regional and international press, to a provision within that Act that makes “sending offensive messages through communications services, etc.” a criminal offence for which persons could be “liable on summary conviction to a fine not exceeding one hundred thousand dollars or to a term of imprisonment not exceeding one year or to both” .
This article briefly reviews the Grenada’s Electronic Crimes Act, and discusses the offending sections of the Act that makes the sending of offensive online messages a crime.
According to the preamble to the Act, its objective is to “provide for the prevention and punishment of electronic crimes”. It comprises four Parts. Part I sets out preliminary matters, especially how key terms should be interpreted. Part II, which might be the most critical, details the following offences:
• Unauthorised access and interference
• Sending offensive messages through communication services, etc.
• Identify theft
• Electronic forgery
• Electronic fraud
• Violation of privacy
• Misuse of encryption
• Child pornography
• Sensitive electronic system
• Electronic terrorism
• Prank calls to law enforcement
• Electronic stalking
• Spoof and spam
• Unauthorised access to code.
All of the above offences have been categorised as summary offences, which typically are considered the least serious types of offences, and hence the punishment is usually relatively lenient, in terms of jail time and fines.
In many countries, summary offences are heard in the Magistrates’ Court, and not the High Court, and frequently, the cases are tried without a jury. Under the Grenada’s Electronic Crimes Act, the fines range from XCD 5,000 to XCD 300,000 (approximately USD 1,850 to USD 111,111) and persons can be imprisoned from between six months and 20 years, which most persons might not necessarily consider “lenient”
Part III, sets out investigation and procedural guidelinese for implementation of the legislation, especially for matters relating to the conduct of police investigations and certain court procedures. Interestingly, and referring to our recent discussion on privacy and government intrusion, a provision has been included in this part of the Act on “mobile phone tracking in emergencies”. Of particular note are the following sections:
24. (1) A mobile phone service provider shall provide mobile phone tracking to the law enforcement agencies upon request in cases of emergencies with respect to the mobile phone of a person involved in such emergency.
(2) Pursuant to subsection (1), cases of emergency include cases of accidents, missing persons and the pursuit of suspects involved in murder, rape, kidnapping or any indictable offence punishable by at least five years imprisonment or more.
Other sections of the Act appears to make some distinction between ‘the Police’ and ‘law enforcement agencies’, where either the former is a subset of the latter, or the former is wholly distinct from the latter.
Hence it is questioned the extent to which ‘law enforcement agencies’, which could include government agencies, such as Ministries of Justice, Legal Affairs, National Security, Director of Public Prosecutions, Attorney general’s Chambers, etc., could demand a mobile/cellular service provider to track a mobile/cellular phone, without a warrant, or the need to seek the approval of the courts.
Finally, Part IV of the Act, contains a few miscellaneous provisions, such as guidance on the institution of criminal proceedings; ensuring that offence under that Act are considered extraditable offences; and empowering the courts to make orders of compensation against the convicted parties, which are payable to the affected parties.
What is so wrong in making the sending of offensive messages a crime?
Section 6 of the Electronic Crime Act sets out the following provisions, regarding the sending offensive messages through communications services, etc.:
6. (1) A person shall not knowingly or without lawful excuse or justification send by means of an electronic system or an electronic device–
(a) information that is grossly offensive or has a menacing character;
(b) information which he or she knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such electronic system or a electronic device; or
(c) electronic mail or an electronic message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages.
(2) For the purpose of this section, the term “electronic mail” or “electronic message” means a message or information created or transmitted or received on an electronic system or electronic device including attachments in text, images, audio, video and any other electronic record which may be transmitted with the message.
(3) A person who contravenes subsection (1) commits an offence and is liable on summary conviction to a fine not exceeding one hundred thousand dollars or to a term of imprisonment not exceeding one year or to both.
To many, especially Internet experts and freedom of expression advocates, this section is generally seen as fostering censorship and overall, is considered a giant step backward.
More importantly, questions are being raised about the extent to which stringent provisions are being applied to communication via the Internet, but perhaps not necessarily face-to-face and other forms of engagement, especially since Grenada decriminalised defamation.
Hence, if someone is causing you annoyance or inconvenience, in person, why is that not considered a criminal offence for which successful conviction could result in an XCD 100,000 (approximately USD 37,037) fine, and/or up to 3 years in prison? Alternatively, if a person has published a document that contains defamatory statements but it is not emailed or posted online, why might that action not be considered a criminal offence, but it would be, if the document were sent electronically?
Although the Grenada Government’s position is that the Act will “deter persons from engaging in mischief to persons and the state”, the furore raised by section 6, has caused the government to respond:
In a statement, the Keith Mitchell government, which controls all 15 seats in the Parliament, said that it is “committed to looking at the segment to ensure that in no way free internet comment is either inhibited or by any slightest measure, threatened.
“While the Government is committed to bringing modern legislation to deal with modern-day realities, it will in no way inhibit traditional old tenets that are the centre of any self-respecting democracy.
“Under the watch of this government, no law shall inhibit or threaten open debate in any form or fashion. That commitment of the current government is clear,” it said.
It is not yet entirely clear whether the Government plans to revise the Act in short order, but as currently drafted, it continues to express the Government’s position on how offensive online/electronic messages should be handled.
More importantly, it provides prospective complainants clear recourse through the courts without further input or intervention from the Government, unless or until the offending sections of the legislation are amended.