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University of Technology's (UTech) Legal Counsel Lisamae Gordon has proposed that the Cybercrimes Act, 2015, should be amended to include psychological and mental damage.
Making her presentation to a joint select committee of Parliament, which is discussing amendments to the legislation, Gordon pointed out that under Section 2(a) of the Act, the definition of what constitutes damage does not include psychological injury.
"Damage is defined as any impairment to a computer or to the integrity, or the availability of data, and it lists the things that the legislation constitutes [as] economic lost; modifies or impairs, or potentially modifies or impairs the medical examination, diagnoses, treatment or care. It speaks about causing, or threatening, physical injury or death to any person, threatening public health or public safety, or causing, or threatening, physical damage to a computer," noted Gordon.
"We think that mental or psychological injury should be included in the definition of what constitutes damage. Reason for this is that [in] recent times there has been quite a bit of cyber-bullying and we would want the mental and physical injury that is caused by cyber-bullying to be embraced by the legislation," added Gordon.
In addition to expressing concerns about the mental state of those who have experienced cyber-bullying, Gordon argued that the Act should also include persons who create false information, and not be limited to those who alter or erase information held in a computer database.
She also said that there is no provision for people who "cause someone to commit an offence under the Act," and argued that this should be amended.
"There is no provision in the current law with respect to entrapment. That is tricking somebody into committing the offence. It (the Act) speaks to the various individuals committing various offences and the penalties attached [and] we believe that there should be some specific provision with respect to when another person causes someone to commit an offence under the Act," Gordon said.
The attorney-at-law further called for amendments to "the language in the legislation" so that "ordinary people [can] understand the crime that is being committed and the ordinary practitioner can understand how the act will be enforced".
Added Gordon: "We are of the view that when it comes to production orders that the language has to be simplified and whatever information is being obtained should not violate the privacy of persons who are being affected. There should be some sort of protection for data which is not necessarily requested pursuant to a warrant".
In the meantime, state minister in the Ministry of Culture, Gender, Entertainment and Sport, Alando Terrelonge, agreed with Gordon and added: "When the Act first came I couldn't understand why we didn't consider the mental or psychological distress caused to persons which stems from cyber-bullying. I certainly believe that when you look at the definition of the damages, and yes we considered the economic part of it and we considered the physical injury and so forth, but mental and psychosocial [damages] need to be taken into consideration."
He also stated that as a user of social media he is aware of the cyber-bullying that takes place on the different platforms.
"People will cut and paste somebody's head onto a body or they'll just make up all this kind of content and they go for the most sensational and vile things to say. They've been instances where cyber-bullying has led to mental anguish and also suicide," said Terrelonge.
"These trolls, and these people who behave a particular way on social media, they believe they can hide behind 140 characters on their keyboards and just tweet and just say the most outlandish things. They need to understand that what you say in the computer world has implications," added Terrelonge.
He further proposed that the Government should look at establishing an information technology tribunal that focuses on certain cybercrimes before it reaches the court.
"If they look at an information technology unit, or a tribunal where they can look at some classes of offences before they actually go to the criminal level, we'll have a tribunal of experts who will look at some of the main offences that arise and see how best they can look at them before they actually reach prosecution. That wouldn't apply to cyber-bullying and others, but maybe to some elements of hacking," said Terrelonge.