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Electronic Crimes Act in Grenada appears to recriminalise defamation

The Parliament of Grenada has approved legislation that would punish the sending of “offensive” electronic communications with up to one year in prison, Grenadian media reported.

The Electronic Crimes Act had been withdrawn in early July after the International Press Institute (IPI) and other groups expressed concern about a potential chilling effect on free speech in the Caribbean nation. IPI confirmed the law's passage with the Office of Parliament.

The Act covers information that is “grossly offensive” or that is known to be false but is reproduced in order to cause “annoyance,” “insult”, and “ill will,” among others (Section 6). Electronic stalking (Section 16), defined as “intimidating, coercing, or annoying another person using an electronic system” is likewise prohibited, with offenders risking three years behind bars.

Targets of the law appear to be social-networking sites as well as the reader comment sections of online media, the latter a domain that IPI believes should be left self-regulated.

Wesley Gibbings, president of the Trinidad-based Association of MediaWorkers (ACM), IPI's regional partner, called the law “a travesty and in direct contravention of the principle and guarantee of free expression and press freedom.”

IPI Executive Director Alison Bethel McKenzie added: “Laws criminalising insult are superfluous in any open society. For one, civil courts are perfectly equipped to handle the offences addressed by this Act. But secondly, and perhaps more importantly, the citizens of any democracy have a fundamental right to debate — robustly, forcefully, even tastelessly — the public figures and policies that affect their lives.”

“Any attempt to shut down this debate, or to regulate it through vague, subjective terminology, should be met with the utmost scepticism and suspicion,” she added.

Speaking to IPI, Dr. Anthony Fargo, director for the Center for International Media Law and Policy Studies at Indiana University (United States) said the law “appeared” to recriminalise defamation in Grenada, albeit only for electronic communications, following successful repeal last summer.

In his review of the law, Fargo expressed particular concern over the fact that the Act only selectively allows truth as a defence. Under Section 6, paragraph 1, subsection (a), for example, communication deemed “grossly offensive” is punishable even if the content is true.

“The lack of a guarantee of truth as a defence is outside the mainstream for defamation actions, either civil or criminal, worldwide,” Fargo noted.

Commenting on the law's terminology, he added: “If Grenada is creating a defamation-like offense, it should at least follow best practices for legal construction generally by avoiding the use of vague terms that could create a chilling effect on speech and lead to arbitrary enforcement.”

The fear of arbitrary enforcement was echoed by one of the few vocal regional critics of the law, Anesia Baptiste, founder of the Democratic Republic Party in St. Vincent and the Grenadines and an outspoken free-speech activist.

In a subsequent interview with IPI, Baptiste criticised the fact that whether or not an individual violated the law depended on another person's emotional response to the communication in question — a situation she called “outrageous, ludicrous and unprogressive, to say the least.”

Because the law's terms are “subjective, and lacking in certainty, clarity and precision,” she suggested, “the language of the Act does not allow the persons subjected to it to be able to regulate their behaviour accordingly. It will undermine the rule of law principle. Interpretation will be left up to the arbitrary feelings of the police before whom a complaint is brought and ultimately a judge, to decide if the communication caused annoyance and inconvenience or not.”

Baptiste branded the law a “poor example for other CARICOM [Caribbean Community] countries,” and expressed alarm over the Act's extensive reach and potential violation of CARICOM freedom-of-movement principles.

The law's terms (set forth in Section 3) apply not only to all residents, visitors, and transit passengers in Grenada, but also to “any person, of any nationality or citizenship or in any place outside or inside Grenada, having an effect on the security of Grenada or its nationals” (emphasis added).

Fargo, who has produced a number of reports on media law in the Caribbean, agreed that the law's scope “seemed very broad.” He added: “The phrase 'Effect on the security of Grenada or its nationals' is not defined, which leaves a broad leeway of interpretation for officials and the courts on what constitutes an 'effect' on security.” Fargo also expressed concern about certain sections under Part III of the law (“Investigations and Procedures”), noting that police appear to be given “broad leeway to 'access, search and seize' stored data relevant to an investigation.”

Despite the criticism from abroad, the Act has attracted little domestic opposition — in part, perhaps, because the ruling New National Party (NNP) possesses an overwhelming majority in Grenada's Parliament. The NNP controls all 15 seats in the elected House of Representatives plus the 10 out of 13 Senate seats that are appointed by the prime minister, currently Dr. Keith Mitchell (NNP).

Grenada's minister for legal affairs, Elvin Nimrod, previously argued that the bill's passage was necessary “to protect society, especially those who are vulnerable to modern technology.”

Shere-Ann Noel, president of the Media Workers Association of Grenada (MWAG) had told IPI in July that she did not think that the law would prove a “hindrance to freedom of expression” to journalists working on the island.

“We urge Grenadian and regional media to take a closer look at this law and the potential consequences it could have for freedom of speech and investigative journalism in the Caribbean,” Bethel McKenzie stated.
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