Government has released wide-ranging draft legislation to tackle cybercrime including child pornography, hacking, identity theft and cyberbullying.
The Cybercrime Bill 2015 provides for the creation of offences related to cybercrime and related matters. It is not clear when it will be laid in the National Assembly. It has been published on the site of the Official Gazette.
It covers a wide range of areas including illegal access to a computer system, illegal interception of data, illegal data interference, illegal acquisition of data, and illegal system interference. Penalties for these offences are a fine of $3 million and imprisonment for three years upon summary conviction and on conviction on indictment, a fine of $5 million and imprisonment for five years.
However, for offences affecting critical infrastructure such as hindering, or interference with, a computer system that is exclusively for the use of critical infrastructure; or affects the use, or impacts the operation, of critical infrastructure, the person is liable on conviction on indictment to a fine of $10 million and to imprisonment for ten years.
The bill defines “critical infrastructure” as any computer system, device, network, computer programme or computer data so vital to the State that the incapacity or destruction of, or interference with, such system, device, network, programme or data would have a debilitating impact on the security, defence or international relations of the State; or provision of services directly related to national or economic security, banking and financial services, public utilities, the energy sector, communications infrastructure, public transportation, public health and safety, or public key infrastructure.
The bill makes it an offence for the unauthorised receiving or granting of access to computer data. Among the provisions is that a person who is unauthorised to receive or have access to computer data commits an offence if he intentionally and without lawful excuse or justification receives or gains access to computer data from another person, whether or not he knows that the other person obtained the computer data through authorised or unauthorised means. The penalty for this offence is a fine of $3 million and imprisonment for three years upon summary conviction and on conviction on indictment, a fine of $5 million and imprisonment for five years.
Child pornography
The Bill makes it an offence to engage in computer related forgery and computer related fraud as well as identity theft. In relation to this, a person who intentionally transfers, possesses or uses a means of identification, other than his own, with the intent of committing an unlawful act through the use of a computer system, commits an offence and is liable on summary conviction to a fine of $3 million and to imprisonment for three years; or on conviction on indictment to a fine of $5 million and to imprisonment for five years.
In terms of child pornography, the bill says that a person who intentionally produces child pornography for the purpose of its distribution through a computer system; offers or makes available child pornography through a computer system; distributes or transmits child pornography through a computer system; procures or obtains child pornography through a computer system for himself or another person; possesses child pornography in a computer system or on a computer data storage medium; or obtains access to child pornography, through information and communication technologies, commits an offence.
The penalty for committing an offence under this section is a fine of $5 million and imprisonment for five years upon summary conviction; or on conviction on indictment to a fine of $10 million and to imprisonment for ten years. The penalty is the same for luring.
Violation of privacy
As it relates to violation of privacy, a person who intentionally and without lawful excuse or justification, captures, stores in, publishes or transmits through a computer system, the image of the private area of another person without his consent, where the other person has a reasonable expectation that he could disrobe in privacy; or his private area would not be visible to the public, regardless of whether he is in a public or private place, commits an offence.
A person who commits an offence under this subsection is liable on summary conviction to a fine of $3 million and to imprisonment for three years; and on conviction on indictment to a fine of $5 million and to imprisonment for five years. For the purposes of this section, “private area” means the genitals, pubic area, buttocks or breast.
The bill also criminalises cyberbullying. It says that a person who uses a computer system to coerce, intimidate or harass another person with intent to cause emotional distress; or cyberbully, intentionally or recklessly, another person, commits an offence. Further, a person who uses a computer system to disseminate any information, statement or image, knowing the same to be false, and who damages the reputation of another person; or subjects another person to public ridicule, contempt, hatred or embarrassment, commits an offence.
Additionally, a person who intentionally or recklessly uses a computer system to disseminate any information, statement or image; and exposes the private affairs of another person, thereby subjecting that other person to public ridicule, contempt, hatred or embarrassment, commits an offence.
A person who uses a computer system with the intent to extort a benefit from another person by threatening to publish computer data containing personal or private information which can cause public ridicule, contempt, hatred or embarrassment commits an offence.
For these offences, a person is liable on summary conviction to a fine of $3 million and to imprisonment for three years; and on conviction on indictment to a fine of $5 million dollars and to imprisonment for five years.
‘Cyberbully’
The bill defines “cyberbully” as the use of a computer system repeatedly or continuously to convey information which causes fear, intimidation, humiliation, distress or other harm to another person; or detriment to another person’s health, emotional well-being, self-esteem or reputation.
Part III of the bill deals with enforcement and gives the court wide powers. According to the Bill, a court in Guyana shall have jurisdiction in respect of an offence under this Act where the act constituting the offence is carried out wholly or partly in Guyana; by a citizen of Guyana, whether in Guyana or elsewhere; or by a person on board a vessel or aircraft registered in Guyana.
It makes provision for a magistrate to approve the search and seizure of an apparatus or computer data while if a judge is satisfied on ex parte application by a police officer, that there are reasonable grounds to believe that computer data which is required for the purpose of a criminal investigation into an offence listed in the Schedule, cannot be collected without the use of a remote forensic tool, the judge may authorise a police officer, with such assistance as may be necessary, to utilise such tool for the investigation.
The Schedule lists offences such as offences involving treason, offences against the person namely murder and manslaughter, offences involving kidnapping, offences involving drug trafficking, namely trafficking in dangerous drugs and possession of a dangerous drug for the purpose of trafficking, unlawful possession of a firearm or ammunition, offences involving a terrorist act, trafficking in persons or trafficking in children, offences involving child pornography and offences involving fraud.
