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Cybercrime policies/strategies

The National Cyber Security Strategy (“Strategy”) was developed and prepared in 2012, by the Inter-Ministerial Committee for Cyber Security. This Strategy seeks to guide all operations and initiatives related to cyber security in Trinidad and Tobago. During the process of developing the Strategy, the critical need for an overarching governance framework and appropriate cybercrime legislation was recognised, and as such, the Strategy has provided the necessary foundation and impetus for the updating of national cybercrime legislative framework.

Cybercrime legislation

State of cybercrime legislation

In 2017, the final review of the draft Bill on Cybercrime was completed and the Cybercrime Bill, 2017 (Bill) was introduced into the House of Representatives (HoR) of the Parliament of the Republic of Trinidad and Tobago. The Bill has as its main objectives:

Criminalization of offences related to computer crime and cybercrime;
Institution of investigation mechanisms;
Use of electronic evidence in prosecution;
Creation of an environment that defines the obligations and restricts the liability of Internet Service Providers; and
Repeal of the Computer Misuse Act, Chap. 11:17 and replace with the Cybercrime Act.

In the HoR, a decision was taken that the Bill will be referred to a Joint Select Committee (JSC) for its consideration and report. As a result of which, the JSC met with various sectorial stakeholders, such as academia, media, industry and government to get their feedback on the Bill. The JSC published a Final Report in 2019.

Substantive law

The legislative regime in Trinidad and Tobago relating to substantial law concerning cybercrime includes the:

The Computer Misuse Act, Chap. 11:17, is the overarching piece of legislation which creates criminal offences regarding the misuse of computers (electronic devices). The Computer Misuse Act makes provision for securing computer material against unauthorised access or modification and other matters related thereto. This Act prohibits any unauthorised access, use or interference with a computer and for other related matters and sets out the penalties for various cyber security offences. It criminalises the disclosure of access codes, the offence of illegal access, the offence of illegal interception, the unauthorised obstruction of use or use of computer and unauthorised receiving or giving access to computer data and following aggravated offense (respectively contained in Article 8, Section 3, 4 and Section 6).

Copyright Act in its Section 8(1)(j) criminalises the communication of copyrighted works to the public.
Section 40 of the Children Act generally criminalises the production, publishing, distribution, transmission or possession of child pornography, which is defined to include child pornography in electronic form and computer-generated images.
Section 5 of the Interception of Communications Act amended on 18 June 2020 brings some clarification regarding the interpretation of the term traffic data in relation to a communication.

The proposed Cybercrime Bill (2017) provides key interpretations, including: access provider (article 34), hosting provider (article 35), caching provider (article 36), hyperlink provider (article 37) and search engine provider (article 38), and criminalises the illegal access of computer date (section 5), illegal data interference (section 7), illegal acquisition of data (section 8), illegal system interference (section 9), illegal devices (section 10), computer-related forgery (section 13) and fraud (section 14). The sections 29 to 32 set out the sanctions and measures applicable.

Procedural law

The Interception of Communications Act, Chap. 15:08, provides for the interception of communications, the acquisition and disclosure of data relating to communications, the acquisition of the means by which electronic data protected by encryption or passwords may be decrypted or accessed and other related matters.

The Interception of Communications (Amendment) Act (June 2020) seeks to provide for officers to apply for a warrant to obtain stored communication from a telecommunications service provider and to also obtain stored data and to disclose the stored communication (section 9). The Act also seeks to make further provision in relation to sensitive information and establishes the procedure for the disclosure of sensitive information and amends the provisions related to the information that has been intercepted to allow for the information to be admissible as evidence in any proceedings (section 15).

The Evidence (Amendment) Act (2009) amended the Evidence Act, Chap. 7:02, by making provision for, inter alia, the admissibility of video or audio recordings of voluntary statements of the prosecution and defence witnesses.

Concomitantly, the Evidence Act has been amended through the Evidence (Amendment) Act (2021) which seeks to expound on the area of electronic evidence in the following areas:

The process where an identification procedure using video medium is to be conducted;
The circumstances where a video or audio recording evidence of the whole or a part of a witness statement shall be admissible as evidence;
The circumstances under which a Court may issue a special measure direction that a vulnerable witness be allowed to give evidence by means of a video link;
The circumstances under which a Court may issue a special measure direction for a person to appear before the Court or give evidence in criminal proceedings using a video link; and
That a video recording captured by means of a closed-circuit television camera is admissible as evidence.

The Cybercrime Bill contains provisions in connection with general and particular criminal investigations, though the power under Section 21 (search and seizure) may only be exercised in relation to investigations of offences established under the Bill. The text requires prior judicial approval for procedural powers related to the preservation of data and the expedited disclosure of partial traffic data. The Bill includes as well expedited preservation of computer data in case of possible loss or modification (section 25) and disclosure of traffic data to identify the path or the internet service provider (section 27).

Safeguards

The Constitution of the Republic of Trinidad and Tobago enshrines certain fundamental rights and freedoms that are accorded to all citizens, which includes the right of the individual to respect for his private and family life, freedom of thought and expression freedom of the press. The Constitution is the supreme law of Trinidad and Tobago, and any other law that is inconsistent with this Constitution is void to the extent of the inconsistency.

The Data Protection Act, Chap. 22:04, seeks to codify requirements for holders of user’s personal information (defined in the Act) to safeguard the confidentiality of user’s information.

The Cybercrime Bill provides for conditions and safeguards with respect to the exercise of the powers and procedures. The Bill requires prior judicial approval for procedural powers related to the preservation of data and the expedited disclosure of partial traffic data.

Related laws and regulations

Anti-Terrorism Act, Chap. 12:07, creates various offences, such as the offence of committing a terrorist act. This includes an act, whether committed in or outside of Trinidad and Tobago, which causes or is likely to cause prejudice to national security or disruption of public safety including disruption in the provision of emergency services or to any computer or electronic system or to the provision of services directly related to banking, communications, infrastructure, financial services, public utilities, transportation or other essential infrastructure.

Children Act, Chap. 46:01, this piece of legislation contains substantive provisions which criminalizes child pornography and was recently amended by the Sexual Offences (Amendment) Act, Act No. 19 of 2019, to create offences where a person communicates with a child by any means, including electronic means, to lure a child, have sexual communication with a child and/or undertake sexual grooming of a child.

Copyright Act, Chap. 82:20, protects the rights of an author, artist or other originator of a creative work by controlling when and how the work can be copied and disseminated, and it prevents others from appropriating the work without permission.

Electronic Transactions Act, Chap. 22:05, makes provision for the procedure to be followed where an intermediary or telecommunications service provider has knowledge that the information in a data message or electronic record is unlawful, defamatory information. Steps must be taken to remove the information from any information system within their control and in the case of criminal liability, notify the appropriate law enforcement agency.

The Act also provides for the protection of consumers by ensuring that a person selling goods by electronic means provides consumers with basic minimum information about himself, such as legal name, principal geographic address, prompt, easy and effective communication and service of legal process. Provision is also made for preventing persons from receiving unsolicited messages.

Electronic Transfer of Funds Crime Act, Chap. 79:51, regulates the transfer of money by an electronic terminal by use of a card for the purpose of instructing or authorising a financial institution to debit or credit a cardholder’s account when anything of value is purchased and for other related purposes.

Extradition (Commonwealth and Foreign Territories) Act, Chap. 12:04, is the principal law that provides for the extradition of persons to and from foreign countries.

Mutual Assistance in Criminal Matters Act, Chap. 11:24, makes provision with respect to the scheme relating to Mutual Assistance in Criminal Matters within the Commonwealth and facilitates its operation in Trinidad and Tobago by making provision concerning mutual assistance in criminal matters between Trinidad and Tobago and countries other than Commonwealth countries.

Offences Against the Persons (Amendment) Act (Harassment, 2005), Chap. 11:08 defines harassment as alarming the person or causing the person distress by engaging in a course of conduct such as making contact with the person by computer in section 30A.

Telecommunications Act, Chap 47:31, authorises the Telecommunication Authority of Trinidad and Tobago (TATT) to, inter alia, regulate and supervise the telecommunications and broadcasting industry. TATT is also responsible for providing for the protection of customers as well as the regulation of broadcasting services consistently with the existing constitutional rights and freedoms.

Trafficking in Persons Act, Chap. 12:10, gives effect to the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organised Crime and for matters connected therewith or incidental thereto.

Specialised institutions

Cyber Crime Unit, Trinidad and Tobago Police Service
Trinidad and Tobago Cyber Security Incident Response Team, Ministry of National Security
Strategic Services Agency, Ministry of National Security

International cooperation

Competent authorities and channels

Competent authorities and channels:

Central Authority, Ministry of the Attorney General and Legal Affairs
Trinidad and Tobago Police Service
Strategic Services Agency, Ministry of National Security

Regional and International Organisations:

Caribbean Telecommunication Union
Organisation of American States
Caribbean Community Implementation Agency for Crime and Security
Interpol
Commonwealth Secretariat
Council of Europe

Procedures

The Extradition (Commonwealth & Foreign Territories) Act (Chap 12: 04) provides the domestic legal regime for extradition, allowing offences to be extraditable within the Commonwealth or other foreign countries.
The Mutual Assistance in Criminal Matters Act (Chap. 11:24) makes provisions with respect to mutual assistance in criminal matters within the Commonwealth as well as facilitating mutual assistance in criminal matters between Trinidad and Tobago and other countries outside the commonwealth. Section 3 of the Act designates the Attorney-General as the Central Authority for Trinidad and Tobago, with additional powers to delegate this function to any other public or legal officer employed in the AG’s Office.
The Interception of Communications Act (Chap. 15:08) also provides legal arrangements for disclosure of traffic data.

Jurisprudence/case law

1) Thomas, Davlin v Siewah, Naresh H.C.1531/2020. CV.2020-01531 (29 July 2020)

Facts: On 24 June 2020 the Claimant instituted a claim against the Defendant seeking damages included aggravated and exemplary damages for libel published via Facebook posts from 25 March 2020 to 10 June 2020; special damages; and damages for the republication of the Facebook posts by Third Parties and by the Defendant posting onto the Facebook Pages “TrinbagoLivesMatter” and “THE VOICE OF THE TnT 99%”.
Final decision: The Defendant was ordered from further publishing any statement defamatory as complained by the Claimant. The case was to be resolved by agreement, if not, the Court would impose a fine.

2) Alfred Pierre v Francis Morean H.C. 2405/2018 CV. 2018-02405 (21 October 2019)

Facts: The claimant is an attorney at law. The defendant is a blogger who maintains a public Facebook page under the name “Francis Morean”. In April 26, 2018, the defendant used his Facebook page to perform acts of defamation against the claimant. The defamation complained about included postings and live-streamed videos that viciously attacked the character of the claimant as well as threatened his life. On January 15, 2019, the Claimant obtained judgment against the defendant. The Court assessed on July 17, 2019 the lack of compliance by the Defendant based on evidence of further defamation (through Facebook live-streams and posts).
Final decision: The case was resolved with the imposition of a fine.

3) Southern Medical Clinic Limited and Rupert Indar Snr v Cherry Ann Rajkumar CA. CIV. S.62/2019 (31 July 2019)

Facts: The claimant is the owner of an hospital, where the defendant was administered treatment. Following the treatment, the defendant published material in relation to the claimant including on social media via Facebook, which the claimant contend is defamatory of him. The claimant sought to restrain further publication of the alleged defamatory material. The defendant asserts the right to journalistic publication. The trial judge refused to grant an injunction to restrain those and further publications.
Final decision: The case was resolved by granting an injunction restraining the respondent from further publishing similar words defamatory of the claimant and granting that the defendant remove and/or delete any defamatory statement linked to the case within 24 hours.

4) Lasana Liburd v Gordon Pierre H.C. 2398/2016 CV. 2016-02398 (7 May 2019)

Facts: Both sport journalists, the claimant is alleging injury to its reputation, character and business through libellous statements on Facebook and other social media platforms. A defamation claim was filed.
Final decision: The case was resolved with the imposition of a fine.

5) Andrew Gabriel v Phillip Alexander H.C. 507/2017 CV. 2017-00507 (1 March 2019)

Facts: The defendant made alleged defamatory statement (including alleged corruption) about the claimant on a radio program that was broadcasted live on the defendant’s Facebook page.
Final decision: The case was resolved with the imposition of a fine.

6) Wayne Sturge v The Director of Public Prosecutions and the Attorney General of Trinidad and Tobago (C.A CIV. P.047/2017, 2 April 2019)

Facts: The appellant, a lawyer, published Facebook posts to express his concerns after cross-examining a witness from a murder trial. Those Facebook posts generated commentary by third parties, some of which the appellant responded to. The judge contemplated proceeding for contempt of court. The core issue dealt with this appeal is whether the proper procedure was followed or not.
Final decision: The appeal was allowed, and the conviction and sentence as well as the order made by the judge are set aside. As for the retrial, the Facebook postings were judged as serious and warranting a referral to the Disciplinary Committee of the Law Association of Trinidad and Tobago.

7) Hiedi Joseph v Ama Charles H.C. 2996/2016 CV. 2016-02996 (1 June 2018)

Facts: This trial concerns statements made by the Defendant about the Claimant on Facebook. The Claimant is seeking compensation for damage to her reputation allegedly caused by the publication of certain words on the Trinidad and Tobago Prison Service (“the TTPS”) Facebook page by the Defendant. The Defendant admits to publishing the words on her personal Facebook page, but she denies that she caused the publication on the TTPS Facebook page. The Defendant also denies that the words have a defamatory meaning.
Final decision: The case was resolved with the payment of damages.

8) Leah Appalonia George v Richard Allen, Guardian General Insurance Limited, TLM Company Limited and New India Assurance Company T&T Limited H.C. 2244/2007 CV. 2007-02244 (13 April 2018)

Facts: The Defendants, insurance companies, want to admit photographs published on Facebook by the Claimant into evidence of fraud. The issues in contention are whether Facebook photographs referred in or attached to the notices filed by the Defendants are admissible, and whether Defendants have the right to cross-examine the Claimant’s witnesses.
Final decision: The defendants are granted permission to admit into evidence the photographs and cross-examine the claimant’s remaining witnesses.

9) DRA, SA, Child A and Child B v Jenelle Burke H.C. 2974/2016 CV. 2016-02974 (5 February 2018)

Facts: The cause of action is libel as a result of certain statements (incestuous actions, infidelity, rape) that the Defendant allegedly posted on social media about the Claimants. The Defendant denied that she had any relation to the posts, even though admitting the profile under which they were published belongs to the Defendant. The issues raised in this case relate to whether the impugned words were defamatory, whether the words referred to the Claimants, whether the words were published by the Defendant, whether they were communicated to persons other than the Claimants.
Final decision: The posts were considered as plausibly able to adversely affect a person’s character and reputation, the Court was disinclined to accept and rejected her contention by way of the Defence filed, that she was not responsible for the said postings. The Court established that the Defendant published words which were defamatory and the Claimants claim in libel hereby succeeds. The case was settled with the payment of damages and costs.

10) Therese Ho v Lendl Simmons H.C. 1949/2014 CV. 2014-01949 (26 October 2015)

Facts: The Claimant and Defendant were engaged in a relationship. Several photographs were taken of the Claimant and Defender during sexual intercourse, explicitly depicting the Claimant in said acts. After the end of the relationship, the Defender showed the photograph to third parties to shame her.
Final decision: The case was settled with the payment of damages and costs.