Cygale Pennant | UN convention gives impetus to tackle cybercrime

August 8 marked an important milestone in the war on cybercrimes. A feature of technological advancements is that it unwittingly operates as a double-edged sword, which has advantages and disadvantages. Although these advancements bring the world closer together, breaches to cybersecurity result in financial losses, as well as damage to an individual’s reputation.

A special committee was established by the United Nations aimed at developing a Convention to prevent and combat cybercrimes. This being the ad hoc committee to elaborate a comprehensive international convention on countering the use of information and communications technologies for criminal purposes. This special committee consisted of delegates from 125 of the United Nation’s member states, including Jamaica.

UNITED NATIONS CONVENTION

The conventions of the United Nations are written legal agreements between member states and the United Nations. These agreements describe the rights of citizens across the world, and what each country must do to safeguard and support the rights of their citizens.

PASSAGE OF THE CONVENTION

After approximately three years of intense debate and negotiations, an anticlimactic pause in February of 2024 - fuelled by member states inability to arrive at an agreement due to diverging cultural and social values; by way of a unanimous vote, The United Nations on August 8 approved the Convention Against Cybercrimes thereby establishing a global level cybercrime and data access legal framework.

WHAT THE CONVENTION ENTAILS

The Convention provides for the non-consensual dissemination of intimate images. In the keynote address on behalf of CARICOM, it was emphasised that the use of information and communication technologies to distribute intimate images without the consent of the individual depicted therein, and with a view to name and shame the individual has become a most egregious and cruel way of harming individuals. In justifying the inclusion of this offence, it was highlighted that this offence results in tremendous harm, and infringes the victim’s right to privacy, with the repercussions being felt long after any corrective measures are taken.

It is to be noted that Jamaica has been astute in criminalising malicious communication which includes revenge pornography. However, there are many countries that have failed to enact the relevant legal framework to deal with perpetrators of this act, therefore leaving victims of revenge pornography with no recourse in the criminal courts. The inclusion of this offence in the Convention mandates that revenge pornography is now a criminal offence across the world and that it must be harmoniously included in all domestic law, thereby protecting all victims despite where they are domiciled or where the incident occurred.

INTERNATIONAL COOPERATION

Member states are now mandated to cooperate with each other in relation to the investigation and prosecution of cybercrime matters – this includes the collecting, obtaining, preserving and sharing of evidence in electronic form of any serious crime, punishable by at least four years.

They are also mandated to cooperate with each other in conducting enquiries with respect to offences established in accordance with the Convention and provide information in relation to the identity, whereabouts and activities of persons suspected of being involved in the commission of an offence, as well as information relating to the movement of proceeds of crime or property derived from the commission of an offence.

It is to be noted that these provisions do not grant member states the freedom to for their law enforcement agencies to go to another country and request electronic evidence or to conduct their own investigations without following the proper protocols. Due to the principle of sovereignty of states, that is, the right of a state to rule itself and those within its territory, should a member state require any form of evidence, whether electronic or otherwise, the relevant information ought to be requested through the legislative framework known as mutual legal assistance. This is a tool of cooperation used by countries to assist each other in the investigation and prosecution of criminal offences or proceedings that extend beyond their national borders. The comprehensive benefit of this provision to Jamaica is that member states that did not previously have the relevant legislative framework, will now be obliged to enact it, enabling law enforcement in Jamaica to request electronic or digital data that is relevant to an investigation from those states.

The Convention also creates a framework for technical assistance and capacity building in the fight against crime. These provisions also create a mechanism through which Jamaica and other small developing states may receive assistance in enhancing their own capabilities in relation to the collection and sharing of electronic evidence.

It is to be noted that these provisions have faced harsh criticism from human rights activists and tech companies, the main argument being that the scope of international cooperation is excessively broad and could serve as a global surveillance instrument that potentially leads to repression.

HUMAN RIGHTS AND LEGAL SAFEGUARDS

Despite the harsh criticism, it should also be appreciated that this is the very first criminal justice treaty that has several human rights safeguards built directly into the provisions, undoubtedly because of the extensive implications of the investigative tools.

In relation to the issue of human rights Articles 6 and 24 are extremely important.

Article 6 explicitly highlights that member states shall ensure that the implementation of their obligations under the Convention is consistent with their obligations under international human rights law, and that nothing in the convention shall be interpreted as permitting the suppression of human rights or fundamental freedoms.

Article 24 outlines the safeguards that can be invoked by citizens if the actions of law enforcement agents violate their rights during the course of an investigation or whilst deploying the powers granted by the treaty.

These sections underscore the sacrosanctity of all recognised human rights, and provides a mechanism for redress, if a citizen’s right is violated.

EFFECT ON THE DATA PROTECTION ACT

In Jamaica, the Data Protection Act that came into effect December 31, 2023 seeks to hold those with access personal data accountable. At a glance, it appears that the provisions geared at international cooperation and the powers granted to law enforcement are contrary to the provisions of the Data Protection Act. However, the Convention explicitly highlights that a member state transferring personal data shall do so in accordance with its domestic law and any obligations the transferring party may have under any applicable international law. It further highlights that member states shall not be required to transfer personal data, if the data cannot be provided in compliance with the applicable laws concerning the protection of personal data.

This newly adopted Convention will result in the strengthening of Jamaica’s criminal justice systems and provide an avenue through which a harmonious approach can be taken in the criminalization of the core cybercrime offences.

Cygale Pennant is crown counsel at the Office of the Director of Public Prosecutions, Cyber Crimes Unit. Send feedback to columns@gleanerjm.com