Octopus Cybercrime Community

The Cybercrime Act passed in 2018 contains substantive provisions referring to illegal access, illegal interception, data and system interference, misuse of devices, computer-related forgery and computer-related fraud, followed by offences affecting critical infrastructure and content-related offences. Part II of the Cybercrime Act criminalises offences provided under Article 2-11 of the Budapest Convention in a largely consistent manner.

The same Act addresses procedural measures of data preservation, production and search/seizure. Interception powers are set under the Interception of Communications Act of 2008.

The Mutual Assistance in Criminal Matters Act of 2009 provides general powers for mutual assistance. However, there are no specific provisions enabling international cooperation with respect to electronic evidence or associated specialised powers.

The Cybercrime Act 2018 contains both substantive and procedural measures. Its section 2 defines terms such as child and child pornography, computer programme and system, electronic and traffic data or intercept and subscriber information.

Part II of the Cybercrime Act 2018 criminalises the following cybercrime offences:

• Illegal access to a computer system (section 3);
• Illegal interception (section 4);
• Illegal data interference (section 5);
• Illegal acquisition of data (section 6);
• Illegal system interference (section 7);
• Illegal devices (section 8);
• Unauthorised receiving, giving or obtaining of access to computer data (section 9);
• Computer-related forgery (section 10);
• Computer-related fraud (section 11);
• Offences affecting critical infrastructure (section 12);
• Identity-related offences (section 13);
• Child pornography (section 14);
• Child luring (section 15);
• Publication or transmission of image of private area of a person (section 16);
• Multiple electronic mail messages and fraudulent website (section 17);
• Offences of sedition (section 18);
• Using a computer system to coerce, harass, intimidate, humiliate, etc. a person (section 19);
• Infringement of copyright, patents and designs and trademarks (section 20);
• Corporate liability (section 21);
• Attempt, aiding or abetting (section 22);
• Use of computer system to commit offence under any other law (section 23);
• Offences prejudicing investigation (section 24).

Procedural measures are listed under Part III of the Cybercrime Act, “Enforcement”. This section also regulates data retention requirements.

The specific provisions under Part III of the Cybercrime Act are:

• Service providers to store traffic data and subscriber information (section 25);
• Extension of time for prosecution of an offence (section 26);
• Jurisdiction (section 27);
• Search and seizure (section 28);
• Production order (section 31);
• Expedited preservation order (section 32);
• Disclosure of traffic data order (section 33).

Procedural measures directly related to the provisions of the Budapest Convention on Cybercrime include search and seizure (section 28) (this power may only be exercised in relation to offences under the Cybercrime Act, and not any other law), production order (section 31) (provides for the issuance of production orders for subscriber information to service providers in Guyana, but not more broadly to service providers offering services in Guyana), expedited preservation order (section 32), and disclosure of traffic data order (section 33).

The Interception of Communications Act of 2008 regulates the interception of communication interception and generally enables law enforcement to conduct interception in relation to telecommunications, which if broadly interpreted, would appear to cover the transmission of computer data.

Part 2 Title 1 of the Constitution of Guyana enshrines “Protection of Fundamental Rights and Freedoms of the Individual”, including the right to personal liberty (section 139), protection from deprivation of property (section 142), protection against arbitrary search or entry (section 143), secure protection of law (section 144), protection of freedom of expression (section 146).

The Interception of Communications Act of 2008 foresees that a judicial warrant is required for interception and disclosure of data.

• Interception of Communications Act (2008)
• Criminal Law Offences Act (1894)
• Sexual Offences Act (2010)
• Access to Information Act (2011)
• Mutual Assistance in Criminal Matters Act (2009)

The Mutual Assistance in Criminal Matters Act 2009 provides general enabling powers for mutual legal assistance. However, there are no specific provisions enabling international cooperation with respect to electronic evidence or associated specialised powers.

Under the Mutual Assistance in Criminal Matters Act, such assistance may be granted to any country that has a bilateral or multilateral mutual legal assistance treaty with Guyana. There are no provisions for the spontaneous transmission of information. As provided under section 6 of the Act, the development of other forms of cooperation, whether formal or informal, is possible.

According to section 23, paragraph 1, of the Mutual Assistance in Criminal Matters Act, the central authority must accept and carry out requests as soon as practicable. However, there are no specific procedures to ensure the expeditious execution or transmission of requests.

Guyana is a party to the Inter-American Convention on Mutual Assistance in Criminal Matters and the Inter-American Convention against Corruption, which also contains mutual legal assistance provisions, and has concluded bilateral mutual legal assistance treaty with the United States. The Scheme relating to Mutual Legal Assistance in Criminal Matters within the Commonwealth may also be used.

Extradition is governed by the Fugitive Offenders Act. Under the Act, extradition is limited to Commonwealth countries (section 3) and countries that have concluded an arrangement relating to extradition with Guyana or countries in respect to which the Minister of Public Security has declared, by order, that the provisions of the Act apply (section 4, para. 2). Guyana is also bound by the London Scheme for Extradition within the Commonwealth.

Sections 2 and 3 of the Mutual Assistance in Criminal Matters Act designate the Minister for Home Affairs as the central authority for mutual legal assistance. Section 22 sets out the requirements for the form and content of requests made to Guyana for mutual legal assistance. A request must be made in English and should be in writing; if made orally owing to urgency, it must be followed by a confirmation in writing within seven days.

Section 23, paragraph 2, of the Mutual Assistance in Criminal Matters Act lists mandatory grounds for refusal of mutual legal assistance, and section 23, paragraph 3, gives the central authority discretion to refuse a request in certain situations, such as interference with an ongoing investigation or prosecution or if the request could not be accommodated within existing legal practices and procedures in Guyana. Before refusing a request, the central authority must consider whether the request can be carried out subject to certain conditions, which would be proposed to the requesting State (section 23). Reasons for refusal of assistance must be given (section 25).

Guyana has not entered into any agreements or arrangements that provide for joint investigations with other States.

Guyana is part of International Telecommunication Union-Impact initiative and is also a member of Organisation of American States-Inter-American Committee Against Terrorism (OAS-CICTE).