Thursday 19 October 2017

Fiji’s Legal Position on Cyber Crime, Intellectual Property and Privacy


by Asinate Raga

1.            Cyber Crimes

1.1         Introduction

With the rise in modern technology, crimes accruing within the dimensions of social media have gained serious legal attention. Generally, the term cybercrime is a contemporary concept that emerged out of the implications of networking and computing. The term cybercrime is too complex that it can be expressed in many different illegal conducts. There are certain computer crimes which involve the exploitation of data and online crimes which affect a person’s life.
Presently, Fiji’s population have become accustomed to the use of social media and have contributed to computer- savvy approaches. Despite awareness on cybercrimes in Fiji, the laws still create leeway for perpetrators of cybercrimes. This report will analyze and scrutinize Fiji’s position on cybercrimes insofar as Fiji’s legal system is concerned.
1.2         Summary of cybercrime laws in Fiji

Cybercrimes include all criminal acts conducted through virtual means and which may cause some sort of loss to a person, organization or the government. Technically, cybercrime laws in Fiji are limited within the scope of data protection, confidentiality and integrity. However, cybercrime offences indirectly related to a person also have legal implications in the civil courts. The effect of civil actions would afford a victim of cybercrime with remedies such as compensation, injunction and specific performance, to state a few. Cybercrimes are legislated under the Crimes Act 2009, the Proceeds of Crimes Act and relevant case laws. Sections 336-346 of the Crimes Act 2009 establishes the different forms of cybercrimes and the legal elements to prove a cybercrime case. The burden of proof, rests with the Prosecution in a criminal case as such.

Pursuant to the Crimes Decree 2009, computer crimes include the following:

              i.                Unauthorised modification of data to cause impairment;

            ii.                Unauthorised impairment of electronic communication;

           iii.                Unauthorised access to, or modification, or restricted data;

           iv.                Unauthorised impairment of data on a computer disk, etc;

            v.                Possession or control of data with intent to commit a computer offence; and

           vi.                Producing, supplying or obtaining data with intent to commit a computer offence.

In addition, the Criminal Procedure Act 2009 also criminalizes certain crimes associated with computer and networking. In the case of State v Singh [2016], the Magistrates Court of Suva invoked Section 70 (1) and (2) of the Proceeds of Crimes Act. In this case, the accused was involved in an online scam where her local bank account was left accountable to foreign deposits found to be the subject of illegal activities. A foreigner had made deposits of more than $70000 into the accused bank account and requested the accused to send money to certain African people. The Court found that despite lacking proper intention of the illegality of her actions, the law strictly condones criminal activities which transpires as a result of networking. It is evident that Fiji’s legal system acts rigidly on crimes accruing in the virtual arena. The embodiment of computer crimes under Fiji’s laws illustrates Fiji’s position in addressing issues associated with technological advancements.
1.3         Surprising aspects of Fiji’s laws on Cybercrimes

The structure of Fiji’s laws on cybercrimes provide a comprehensive approach towards addressing computer-related crimes. From a personal perspective, the Crimes Act 2009 criminalized aspects of cybercrimes from different dimensions. The astonishing aspect of Fiji’s cybercrime laws is where a person could be found guilty without intention to commit a computer related crime. With reference to the case of State v Singh, the accused lacked the intention of committing a crime which was caused by online scams and deceptions. However, the accused was found guilty as her actions were directly motivating the pursuance of the scams. The accused had willfully provided her bank account as the main deposit account from foreign scams. This caused her vulnerability to be criminally liable. It is surprising to learn how and in what other ways a person could be held criminally liable due to activities associated with networking.

1.4         Perspective on the Amendment of Fiji’s Cybercrime Laws

From a personal viewpoint, there is a need for Fiji’s cybercrime laws to be amended. This solely depends on the legislators of the day and to what extent is Fiji copiously conscious of the matters of cybercrimes. It is strongly argued that Fiji needs to extend its scope of cybercrimes as advancement in technology could blind the course of justice. Fiji’s laws on cybercrimes would be amended provided that cybercrime issues are reasonably addressed.

1.5         How does Fiji’s cybercrime laws promote ethical behavior?

The term ethics is often associated with the principles of morality, which compels a person to know what is right from wrong. Fiji’s cybercrimes are demonstrated in the Crimes Act 2009 and the Proceeds of Crimes Act. It is evident that the Crimes Act 2009 pursuant to Sections 336- 346 condones the acts of fraudulently and dishonestly obtaining, producing, supplying and altering data. The recognition of ethical behavior through networking and computing is regulated through Fiji’s cybercrime laws.

1.6         Enforcement of Fiji’s cybercrime laws by Local Organisations.

It could be stated that most of Fiji’s Organisations fail to address and combat cybercrimes within their respective environments. Organisations need to understand the consequences accompanied with cybercrimes. The following suggestions addressed below are mechanisms upon which Organisations could appropriately enforce cybercrime laws of Fiji:

              i.                Establish organizational guidelines regulating cybercrimes in accordance with the Crimes Act 2009.

            ii.                Enforcing internal disciplinary mechanisms to deal with minor related computer crimes; and

           iii.                Ensuring that the Organisation’s ethical standards incorporate appropriate cyber ethical behaviors.

1.7         Additional Cybercrime Laws which needs to be included in Fiji’s Laws

The 2013 Constitution is the supreme law of Fiji. Whereby, it is recommended that the 2013 Constitution should also embody provisions pertaining to the protection, confidentiality and integrity of data. This perhaps would be the best suggestion on improving cybercrime laws in Fiji.

1.8         Conclusion

In conclusion, cybercrimes is a modern concept which still has to be reasonably addressed in Fiji. The education sector has taken a role in addressing cybercrimes. Fiji’s legal framework has exerted efforts to prosecute perpetrators of cybercrimes. Initiatives of local Organisations would elevate Fiji’s position in condoning cybercrimes.




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