In 2019, media organisations and international press freedom advocates took a stand against proposed amendments to the Virgin Islands’ Computer Misuse and Cybercrime Act, warning that certain provisions could threaten legitimate journalism and freedom of expression.
Among those raising objections were Reporters Without Borders (RSF), the International Press Institute (IPI), the Committee to Protect Journalists (CPJ) and the Association of Caribbean Media Workers.
Their concerns centred on provisions that could potentially criminalise electronic communications considered offensive, introduce criminal penalties for electronic defamation and expand police arrest powers.
Sections 14A, 14B and 14P attracted particular criticism.
The media organisations warned that broadly worded offences could have a chilling effect on investigative reporting, particularly where journalists were dealing with confidential sources, publishing sensitive information or scrutinising powerful individuals and institutions.
The objections were formally raised, including in a December 2019 letter from RSF to then Governor Augustus Jaspert.
Despite those concerns, the House of Assembly passed the amendment legislation on October 18, 2019.
Governor Jaspert subsequently assented to it on February 12, 2020.
Importantly, the Governor acknowledged the concerns about freedom of expression and indicated that he had recommended that the Director of Public Prosecutions consider developing guidelines to safeguard legitimate journalistic reporting when applying the legislation.
That recommendation raises an important question: Were those guidelines ever formally developed and implemented?
Cybercrime legislation must not silence journalism
Nobody disputes the need for legislation to address cybercrime, online harassment, fraud and other criminal activity.
However, there must be a clear distinction between criminal conduct and legitimate journalism.
A media house should not have to fear criminal prosecution simply because its reporting is controversial, critical or uncomfortable for the subject.
The media must be accountable. It must report responsibly, verify information and respect the rights of those it reports on.
But accountability cannot become a convenient argument for suppressing scrutiny.
The greatest danger is not always an actual prosecution. Sometimes the mere possibility of legal consequences is enough to discourage a journalist from pursuing a story or an editor from publishing information the public deserves to know.
That is how self-censorship begins.
The Virgin Islands Constitution Order, 2007, protects freedom of expression under Section 23. That protection must have practical meaning, including for independent media.
The warnings were raised before the legislation became law. They should not now be forgotten.
The public deserves a media that is responsible and accountable, but also free to ask difficult questions without fear or intimidation.
A cybercrime law should protect the public, not discourage the journalism that helps hold power accountable.