Why the Cybercrime bill should worry journalists

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Above: The practice of journalism as it is widely imagined to occur. Photo by GaudiLabs/DepositPhotos.

BitDepth#1136 for March 15, 2018

At a Joint Select Committee meeting on Tuesday that took up the lapsed work of the last JSC on the Cybercrime Bill, Attorney General Faris Al Rawi seemed receptive to the idea of creating an exception clause for journalism for one of the most troubling provisions of the bill.

Section 8 of that legislation has two parts, one that describes the act of computer hacking for the purposes of illegal information retrieval and its penalties and another that does the same for making use of information gained by such means.

Clause 8

  1. A person who intentionally and without lawful excuse or justification accesses a computer system without authorisation, or by exceeding authorised access, and obtains computer data commits an offence and is liable on summary conviction to a fine of one hundred thousand dollars and imprisonment for two years; or on conviction on indictment to a fine of five hundred thousand dollars and imprisonment for three years.

  2. A person who intentionally and without lawful excuse or justification receives or gains access to computer data knowing the same to have been stolen or obtained pursuant to sub-section (1) commits an offence and is liable on summary conviction to a fine of one hundred thousand dollars and imprisonment for two years; or on conviction on indictment to a fine of five hundred thousand dollars and imprisonment for three years.

Al Rawi suggested using the Reynolds Defence, a means of implementing qualified privilege for publishers and broadcasters providing information of broad public interest as a basis for the committee’s amendment.

It’s notable that this 1999 legal manoeuvre has since been replaced in the UK by the Defamation Act of 2013, which clarifies the grounds for qualified privilege and offers clearer yardsticks for establishing criteria for adapting the defamation law to one meant to measure the public interest value of information of questionable provenance.

In the time that the Cybercrime Bill has been in deliberation, there have been dozens of leaks of global information, with WikiLeaks alone curating 81 distinct caches of digital information.

This is a fast moving, rapidly evolving situation and one which is complicated by the increasingly diffuse idea of journalism and reporting, which had drifted out of the relatively polite and responsible realm of the traditional newsroom into wider, less informed use using tools with instantaneous global reach.

It might be further noted that it was under the umbrella of Parliamentary privilege – which is far broader and more encompassing that any protection that an adapted Reynolds defence offers – that former Opposition Leader Dr Keith Rowley introduced emails into consideration by the esteemed members of the House in 2014.

Clearly the political leader of the PNM thought that using privilege to air matters he considered to be of national interest was a good idea.

One imagines that before facing Parliament, he might have been moved to agree with the general principle that the business of journalism is the sourcing and packaging of information in the public interest for wide dissemination and consideration.

It’s important then for the Government to be thinking, not just about the journalists who represent the voices and immediate face of these issues, but about the business of journalism, which increasingly represents a Fourth Estate of engagement between government and an electorate which is participating in digitally enabled conversations in growing numbers.

The Cybercrime bill, which is currently being discussed by a Parliamentary Joint Select Committee, is a complex, necessary work of legislation, but it’s one that’s being pursued with inadequate concern for the chilling effect it brings to the role of journalism in a modern society.

The specifics of those issues have been documented both in this column and in a notably detailed dissection by the TT Computer Society.

The deeply technical nature of many of its provisions and the dense legalese in which it is couched have dimmed the kind of robust response that its provisions bring to the business of reporting, so perhaps understanding where these laws sit in relation to the positioning of the role of journalists and the business of governance in modern society.

Journalists often come into conflict with politicians, but there is a good reason for that.

Despite an occasional mask of consultation, politicians generally govern by edict and decree, offering up the legislation that manages our governance process through a system that defies casual attention and implementing it with a obscurantist’s disinterest in meaningful engagement.

Implicit in every politician’s speech from a podium is a quiet underlining of their words with the notion that they know what’s best for us all.

It is the journalist’s role to ignore that suggestion, and to question process and outcomes for the works that politicians propose and pursue.

There is a fundamental divergence in these positions, which does not make practitioners on either side enemies, yet it does guarantee that the process of speaking truth to power is often uncomfortable both to voice and to hear.

Politicians can get away with seeing their constituents once every five years and offering up vague platitudes during such encounters.

Journalists meet with their constituents every day, engaging in conversations that are increasingly activated by responses that are livelier and more direct than the passive old days of the letter to the editor.

The business of journalism is no longer the exclusive province of the journalist.

Activists representing aggresively for their causes increasingly travel the same road as the professional reporter, gathering background information, witness statements, incriminating documents and building stories that challenge the halcyon narratives so beloved of public sector communications professionals.

Trinidad and Tobago, like most of the societies of the Caribbean archipelago, has been programmed to be polite and accepting for centuries.

Good citizens accept and honour authority and respond poorly to the perceived rudeness of defying leaders and questioning their motives and projects.

But good journalism is all about the backchat, particularly the informed response that demands acknowledgement by those who confuse leadership with service.

Our laws should respect that role.

The guiding measures of the Reynolds Principle

  • The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.

  • The nature of the information, and the extent to which the subject-matter is a matter of public concern.

  • The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.

  • The steps taken to verify the information.

  • The status of the information. The allegation may have already been the subject of an investigation which commands respect.

  • The urgency of the matter. News is often a perishable commodity.

  • Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary.

  • Whether the article contained the gist of the plaintiff’s side of the story.

  • The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.

  • The circumstances of the publication, including the timing.