The Gambia: Draft cybercrime bill threatens online dissent

The Gambia: Draft cybercrime bill threatens online dissent - Civic Space

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ARTICLE 19 is deeply concerned that a draft cybercrime bill (the Draft Bill) currently under consideration in the Gambia will serve to effectively crush online freedom of expression and dissent. We believe the Draft Bill to be fatally flawed in its current state, and urge the drafters to address its severe shortcomings to bring it in line with international standards on freedom of expression.

In our analysis, ARTICLE 19 provides a close look at structural flaws and legal issues in the Draft Bill. We also note that nations, including the Gambia, are currently debating an international convention on cybercrime at the UN level that would require the Gambia to rewrite its domestic legislation, so question the need for the Gambia to create its own bill at this time. While ARTICLE 19 has been critical of the draft Cybercrime Convention at the UN, the Gambia’s Draft Bill does not meet even the low standard that the UN draft convention sets. Key issues include: 

  • The Bill would make an alarming scope of online speech a crime under the guise of combating ‘cybercrime’. The majority of proposed offences have nothing to do with cybercrime, apart from having the word ‘cyber’ or ‘computer’ attached. Instead they represent a broad effort to criminalise a wide range of speech online, from ‘false news’ and ‘prurient’ speech, to causing ‘harm’ to the ‘self-esteem’ of political figures. Provisions that are framed as protecting against ‘cyberbullying’ are instead so broadly crafted as to allow for the punishment of journalists for reporting on or criticising public officials.
  • The Bill would make media organisations, civil society, and their senior leadership individually criminally liable for stories and investigations. Under the Bill, senior leadership of corporate entities would be individually criminally liable for the actions of entities, and they would have the burden to prove that they actively conducted ‘due diligence’ of published content. Given the Bill’s wide criminalisation of ‘false news’ and statements made against the reputation of officials, the Bill would put the editors and leadership of any media or human rights organisation at risk for any story or investigation issued by that entity. This creates a potent weapon for the government to  cripple any opposition media or civil society groups.
  • The publication of evidence or data in the public interest could be criminalised. The computer crime offences are so broadly worded that they make any ‘unauthorised act’ in relation to a computer or ‘data’ a crime. Prima facie, this provision would appear to criminalise a journalist who publishes incriminating text messages, which by its nature would be ‘unauthorised’ by the official incriminated.
  • The Bill would create significant police and surveillance powers that in some cases are subject to no judicial or similar independent oversight. These powers, including preservation and production orders that may be issued at will by law enforcement, are accompanied by gag orders on service providers with no opportunity for appeal. 
  • The Bill would criminalise digital security and legitimate academic or security research. Other police powers include the ability to force service providers to compel the decryption of content, as well as hold the mere possession of digital security tools, without intent to commit any crime, a criminal offence in itself. This would have the effect of chilling vital tools for the protection of sources, confidentiality of communications, and physical safety of journalists and human rights defenders. Moreover, the cyber-dependent offences of the Bill do not contain public interest carve-outs that would protect the legitimate use of computers or software for auditing or research purposes.

In addition to several article-specific recommendations, ARTICLE 19 strongly recommends:

  • The inclusion of a reference to the Gambia’s obligations under international human rights law to protect and promote freedom of expression, as well as an affirmation that no provision of the Bill will be used to stifle the activities of journalists, human rights defenders, or dissidents.
  • The removal of content-based offences, including in Article 12(7), which punishes ‘pornographic’ and ‘prurient’ content, as they are not compatible with international law.
  • Provision for a mandatory independent review of any preservation or production orders issued by law enforcement, the elimination of the automatic gag order for recipients, and provision for the opportunity to judicially challenge the validity of such an order.
  • The inclusion of clear requirements of ‘serious harm’ before criminal liability attaches and definition of key terms, such as what it means to ‘expeditiously’ or ‘sufficiently’ comply with orders, in order to provide legal certainty.
  • The striking off of Article 16(2)(vii), which allows compelled decryption and undermines a necessary tool for the realisation of the right to freedom of expression by journalists, human rights defenders, and the public at large.
  • The striking off of articles dealing with offences that are not cyber-dependent offences. They have absolutely no place in cybercrime legislation and uniformly constitute restrictions on freedom of expression by criminalising valid criticism of public officials.
  • The striking off of articles that explicitly eliminate the requirement for specific intent to impact computer systems or data. Instead, the Bill must make it clear that every cyber-dependent offence requires specific, dishonest intent.

ARTICLE 19 stands ready to offer any additional assistance and expertise that would be helpful to the Gambia as it continues to consider the Draft Bill.

Read the full analysis