“The Curious Case of Angel Gabriel”- the DPA vs Cybercrime Act

I play the role of a curious onlooker, listening and watching the “curious case of angel Gabriel”. The nine year old Montegonian was on his merry way home with his mother when the dastardly act of abduction and murder took place, leaving the country shocked and in horror as the news broke that he was found with his throat slashed in the back seat of his mother’s car.

This I thought was just another case to be added to the many child murder cases that Jamaica have seen in recent times and which the police has struggled to solve. Oblivious was I of the drama that was waiting to unfold in the Parish Court. The police had seemingly hit a dead end in relation to their investigations of the murder and as such wanted to know where next to go. In a video posted to its social-media accounts, the Jamaica Constabulary Force said it is locked in a legal battle to get access to critical evidence from the cellular phone of the child’s mother (Gleaner Article Nov. 2022). Thus,? the mother of the fallen “angel” was now being tagged as not cooperating and not wanting to allow them access to her personal cell phone.?

This caused me to perk up in my work chair, as I realized that the issue at hand was not a simple one of a relative being pursued in relation to a crime, as statistics have shown is often the case in murders of this type. More importantly I realized that the issue was a privacy matter, and being a privacy practitioner, I wanted to hear what the learned Magistrate would rule, after she was given a “lesson” on the Cybercrimes Act by the preeminent Data Protection Guru. The ruling came and the police were given their much clamered for “production order”, and the guru left teeming with disappointment and looking to the judicial review process for the required relief.

I sympathize with him one hundred percent, and wish I had the much vaunted biblical powers of the Holy one, to? share in the magistrate’s mental deliberations or listen as she reads to inform herself of the requirements of the law. I took the time to read the operative section of the Act, Section 21.?

The Section states that :?

“A Resident Magistrate, if satisfied on the basis of an application made by a constable, that any data or other computer output specified in the application is reasonably required for the purpose of a criminal investigation or criminal proceedings, may make an order under subsection 2”.?

My naive knowledge of both the case and the law says there hasn't to this point been any “ criminal investigation or proceedings” that the mother of the child is involved in or has been fingered as a suspect in. So how would it be “reasonable” to think her phone is required for this purpose ? Thus the Cybercrimes Act requirement in this regard has not been met.?

The Data Protection Act 2020 (DPA) is described as “AN ACT to Protect the privacy of certain data and for connected matters”. The privacy data,? I put it to you my fellow onlookers, is the privacy data of us ordinary Jamaica citizens, privacy rights which the Jamaican Constitution already gave us. The codification of these rights are to prevent the very same issues that are unfolding before our very eyes. The police may be able to rely on an exception under the law, but nonetheless we do “have a right to privacy”.?

This right is the reason why the Guru has gone to the Supreme court to seek further judicial relief. Where is the Information Commissioner, in all of this ? Does the office of the information Commissioner operate similar to the Public Defender's office ? I ask these questions as a cursory glance of the DPA 2020 shows that the police would first have to meet the Eight Data Standards and then the exceptions would apply if need to process the data inline with the said exceptions under the Act.

The police have not stated that the mother of Gabriel is a suspect or in any way connected to “this crime”. In Fact the most we know is that she is a victim, and I'm sure the police aren't in the business of harassing victims of crime, whether physically or emotionally. The task that is to be decided on by the courts seems bigger than just the application of the Cybercrime act and its various interpretations, it's about our right to privacy and how the DPA helps us to protect? this right.?

The cellphone in question is the personal property of the “mother” and may very well have very personal photos on it, like her child on the day of his birth with all his epidermis exposed, or pictures like those the “angel” would not be allowed to view. The thing is the law is not to be considered in a vacuum, thus the Cybercrimes Act, should be interpreted in light of her right to privacy, and thus far the police is struggling to show that:

• Firstly, the phone “ is reasonably required for the purpose of a criminal investigation or criminal proceedings”.
• Secondly, under the DPA the First standard is that “personal data shall be processed fairly and lawfully”. How is the personal data on the phone to be processed lawfully? Noted attorney at DunnCox Mr Courtney Bailey writing in an online article stated that “lawfully, means that there must be a legal basis for the processing”.?

Mother dearest, has not been arrested, listed as a person of interest nor has her phone been “fingered” as a point of contact for either the killers or the planners of this dastardly deed. The police have simply made a blanket statement requesting that they be allowed to intrude on the privacy of the Jamaican, and we all turn to start wondering “ a must she kill di pickney”, “a weh she a hide” and all sort of other unthinkable things.

I ventured to the nether world of social media, to see what the knowledgeable citizens of Jamaica and the diaspora had to say. After carefully reading over 400 comments on the issue, I was left amazed at the fact that none of the “knowledgeable” commentators had taken a small step back, and addressed their minds to the existence of the DPA, or simply to the fact that mother dearest had as a fundamental right, to privacy.?

She ought not to be made to prove her innocence, as the law assumes this. She ought not to prove she has nothing to hide, as the law allows her to hide stuff, it's called her right to privacy.?

Friends, it's not uptown vs downtown, don't be fooled, it's the right to privacy, and what the government, through its agencies ought to know and do.The Cybercrimes Act, is not superior to any other law in Jamaica, but the constitution is, and it guarantees our right to privacy. I pray that the person or persons responsible for the death of “Gabriel'' is found, and prosecuted, but in line with the law.? The truth is without law there can be no order, and just like you, I crave Jamaica, with law and order.

Malica Reid is a privacy practitioner plying his craft at Design Privacy and can be contacted at [email protected]