Sir David’s defence

Sir David Simmons, chairman of the Law Reform Commission, took on critics of the contentious Cybercrime Bill on Monday, including his former personal assistant, the outspoken Caswell Franklyn, and a slew of so-called social media influencers.

In dismissing their main criticism that the bill blocked freedom of speech or breached their constitutional rights, Sir David, a former chief justice and attorney general, said Barbadians were free to transmit data as long as it did not defame others or cause any of the distresses listed in the bill.

It was the Law Reform Commission which made the recommendations for the bill that attracted much public outcry and ended up in the Senate before the Joint Select Committee, chaired by Member of Parliament Edmund Hinkson, for further examination and to probe the criticisms.

Sir David cited two instances in which he was affected by the misuse of the computer, one involving pornographic material when someone sent him an advertisement for an oral sex competition in St Philip.

“I am not going to play this one because it is so disgusting . . . . I had to report this to the police . . . and the nastiness was displayed large for everybody to see. I was so disgusted I sent it to an ASP (assistant superintendent of police) to follow it up,” he said, while advising citizens to do likewise if they were offended.

In the other instance, he was “dragged” into the recent Digicel cell tower saga at Holders Hill, St James, when someone posted that head of Digicel, Natalie Abrahams, was his daughter (which was not true) and that was followed by the word “corruption”.

That was published on a computer system recklessly as the people did not care whether what they said was true, he said.

“That is the kind of thing this legislation deals with. If you tell me this is bad legislation because it protects people’s reputation from viciousness, then I disagree with you.

“The law is there to rein in some of this conduct and some of this behaviour . . . without trampling on the rights to free speech. You can speak freely but that does not mean you have the right to curse somebody beyond their burial ground by telling a bunch of lies on them,” Sir David said.

The proposed legislation did not, he added, contain any offence of strict liability and every offence contained proof of mens rea, meaning people intentionally or recklessly engaging in the listed activities and not something done in error.

Twenty-three times, Sir David said, the bill used the terms “intentionally”, “recklessly” and “without right” to import a notion of the mens rea mental element.

Sir David, regarded as one of the top legal minds in the region, said that apart from the defence that is implicit with the use of the words “intentionally”, “recklessly” or “without right”, the Law Reform Commission went to great length to say that the defences of truth, comment, triviality and privilege provided under the Defamation Act shall extend to the bill.

“You have defences written into the law. We have not been unfair to anybody. We have been very generous to put in the law what defences you can rely on, God forbid, if you are charged.”

Sir David, who was armed with a number of newspaper articles knocking the bill, particularly the malicious communication aspect, said none of the commentary drew attention to provision for a defence.

Along with Franklyn, he listed names such as Peter Thompson, Marcia Weekes, Stephanie Chase, Kemar Stuart and Michael Ray who claimed that freedom of expression was under threat, and that some of the words were vague and problematic.

However, he said words such as pornographic, vulgar, profane, obscene and menacing were used to describe the content transmitted.

In relation to the impact on people, the words used were “for the purpose of causing” annoyance, embarrassment, insult, injury, hatred, emotional distress among others, he pointed out.

Sir David said interpretation of the words were a matter for the court, but before that the complainant had to tell the police how they felt. (AC)

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