Constitutional Lawyer Garth Patterson: Case Over Barbados Cybercrime Bill Facing Hurdles Before Human Rights Commission

Leading constitutional lawyer Garth Patterson said Wednesday that the case brought before the Inter-American Commission on Human Rights (IACHR) by a citizens group over the government’s proposed Cybercrime Bill may be “doomed to fail”, declaring that Barbados has not acceded to the jurisdiction of the Inter-American Court on Human Rights.

But he also acknowledged that some of their concerns were valid.

The group, Loyal Opposition, pushing for significant amendments to the legislation that they believe threatens fundamental rights, is set to present their concerns to the Washington DC-based advisory body on November 11.

Though the citizen group remains hopeful that their extensive efforts will successfully influence changes to the draft law, Patterson has expressed scepticism about the case.

He told Barbados TODAY that unless the government addresses the shortcomings of the bill as outlined, the challenge is unlikely to succeed.

“The case before the court may be doomed to fail, provided that the government is prepared to respond in a serious way to the serious flaws identified in the legislation,” he said.

Patterson explained that while some of the concerns raised by the opposition and other stakeholders are valid, particularly regarding the language of the bill, the IACHR’s ruling would not be legally binding on Barbados.

He stressed that although the IACHR’s decisions are not compulsory for states that have not ratified the Convention, they could still carry some international reputational weight.

“Barbados is not a party to the American Convention on Human Rights,” he added. “And although it’s a member of the OAS, it hasn’t ratified the convention, which means the decisions of the Inter-American Court of Human Rights are not binding on Barbados. But they may have some persuasive effect, and reputationally, standing within the international community could be affected.”

Barbados signed the American Convention on Human Rights on June 20, 1978, and ratified it on November 5, 1981, depositing the instrument of ratification on November 27, 1982, according to Organisation of American States (OAS) records. The ratification included specific reservations concerning Barbados’ retention of the death penalty and due process rights, which were noted without objection during the required 12-month period following the notification of these reservations. However, documents for accession to the human rights court’s jurisdiction were not recorded as having been deposited.

While Patterson acknowledged the seriousness of the cyber threats that prompted the bill, citing issues such as cyberbullying and the spread of fake news, he emphasised the need for careful and proportionate legislative action.

He noted that the bill’s broad language, particularly in relation to criminal defamation, posed a risk of overreach, potentially infringing on free speech rights.

“The abuse of electronic media is real. Cyberbullying, these are all real things. I have been a victim of a cybersecurity breach. I understand the consequences, and it is a real security threat, as well as a real threat to individuals,” the lawyer said.

However, he warned that the bill, as currently drafted, could capture individuals who did not have the requisite intention to defame.

He pointed to problematic language in the bill that criminalises the publication of false information without requiring knowledge that the information was false.

“The language that is proposed as it relates to criminal defamation is very broad and not tightly drafted,” Patterson noted.

“It could end up capturing in the net persons who do not have the requisite intention to defame. If you intentionally publish materials that turn out to be false, it doesn’t say you knew them to be false. So, there needs to be an urgent look at what it is you’re trying to achieve, and who you’re trying to capture in the net.”

Patterson added that he did not share the view of Loyal Opposition that the bill was intended to stifle freedom of expression but stressed the importance of ensuring that the limitations on speech are reasonable and proportionate.

He argued that the government’s obligation is to protect national security, public order, and private rights and that such legislation must balance these priorities with the right to free expression.

“In fact, there’s no such thing as free speech, and the Constitution doesn’t guarantee free speech,” Patterson pointed out.

“The Constitution recognises that there are limitations, and the question isn’t whether or not the limitations are being imposed, but whether the limitations that are proposed are reasonable in all the circumstances.

“I’m not necessarily on board with the notion that the underlying objective of the bill is to stifle free speech. But if those limitations are reasonable, then I don’t know that they can properly be objected to,” he said.

shannamoore@barbadostoday.bb