Jamaican prosecutors are testing the limits of the country's relatively new Cybercrime Law with a case against Latoya Nugent, an activist who has publicly named alleged perpetrators of sexual violence via social media.
Nugent is the co-founder Tambourine Army, a new movement led by women and survivors of sexual violence who are talking openly about their experiences, both online and in public. Triggered by revelations of child sexual abuse by Moravian Church pastor Paul Gardner, the Tambourine Army has garnered support online and off, in a public march in the capital city of Kingston that took place in February. It also has triggered heated debate online in Jamaica.
One of the Army's more controversial tactics is the #SayTheirNames hashtag, where they encourage women to come forward with their stories of sexual abuse by naming the perpetrators before they've had a chance to defend themselves before a judge. Nugent was arrested for identifying several men as sexual predators on social media, some of whom lodged formal complaints with the police.
Campaign supporters reason that Jamaica's laws surrounding sexual violence and domestic abuse (including the Sexual Offences Act of 2009) place disproportionate burden on the victim, a topic of critical concern in Jamaica and elsewhere. Rape and abuse are also massively underreported in the country because of a culture of victim-shaming and stigma.
But the case against Latoya Nugent also raises new questions about the application of Jamaica's Cybercrime Law when it comes to online speech.
Similar to other cybercrime laws around the globe, Jamaica's legislation leaves room for interpretation when it comes to unlawful or “malicious” communication. In an offline setting, Nugent's act of naming and shaming perpetrators of sexual violence would most likely be classified as defamation. In 2013, Jamaica reformed its defamation regime to be treated as a matter of civil — not criminal — law. In short, this means that if a person is convicted of defamation in Jamaica, they can be made to pay damages, but cannot be given a prison sentence.
If she had named perpetrators in a public offline space, authorities may not have had legal grounds for her arrest.
Had the Tambourine Army named perpetrators in a public offline space, authorities may not have had legal grounds for her arrest. But the vague language of the Cybercrime Act appears to have given them just that.
Commenting on the case for the Jamaica Gleaner, human rights lawyer Tenesha Myrie wrote:
The use of the Cybercrimes Act, in particular, Section 9, which makes it an offence to use a computer for malicious communication, appears to be an attempt to criminalise defamation through the back door.
The case is an example of new challenges activists face as speech is increasingly policed by various kinds of cybercrime legislation in the world.
The Tambourine Army march has become part of what is being called a historic, regional protest against gender-based violence. Similar marches have happened in Barbados (through the #LifeInLeggings movement), in Guyana, in the Bahamas and in Trinidad and Tobago, where activist Tillah Willah made a call for solidarity with Nugent:
[…] We all see this for what it really is – a witch hunt for a group of activists who are challenging a society that does not want to confront its problems with child sexual abuse and other manifestations of gender based violence.
In February 2017, after some social media users were circulating gruesome images of female murder victims, Trinidad and Tobago's attorney general said that he intends to bring amendments to The Cybercrime Bill to Cabinet in order to curb such irresponsible online behaviour. The legislation may also apply to “reckless users” who, by sharing unverified information, cause people to panic or be fearful.
Please be AWARE of bills being considered in our own parliament about how we use social media and how we speak and what it will mean. When it comes to laws, it pays to be a little bit paranoid and consider the worst case scenarios. Look at the loopholes and how the wording of the law can be manipulated.
Nugent's next court appearance is scheduled for March 22. Until then, the debate will no doubt continue.