The arrest of a talk-show host on a social media platform and subsequent charge under the Cyber Crime Act should be a wakeup call for the authorities to institute systems to monitor and control activities in this new burgeoning communication area to prevent harm from being committed. He used a computer system to encourage a criminal offence against the President of Guyana and three other named high-ranking members of the Government – namely that they be gotten rid of. This is not a hypothetical issue in Guyana and our laws and systems of societal norms should take cognisance of the nature of our societal fractures and our history of individuals using incendiary language that led to outbreaks of violence and mayhem.
In this instance, a caller to a talk show was allowed by the host to develop very explicitly his rationale and methodology for “getting rid” of the four high officials. At no time did the host attempt to interrupt or cut off the caller by pronouncing that the promotion of violence over the medium was prohibited. Additionally, the host, as an executive of a fringe political entity, has been engaging for years in first defining the Government as “illegally installed”; then instituting an “apartheid regime” and most recently that it was actually “fascist”. As such, the host, for years, has been encouraging his audience to “remove” the Government from office. It had become commonplace for callers to suggest that violence be used to accomplish this goal without the authorities taking any action. Hate speech, which is speech that offends or attacks people based on their identity or characteristics such as race, ethnicity, national origin, religion, gender, sexual orientation, disability or disease, is common on this site as it relates to Indian Guyanese in general and those who support the Government in particular.
It was only after the caller made his argument and signed off that the host made an equivocal and perfunctory disclaimer: “I don’t necessarily endorse the promotion of violence, but I do subscribe to the fact that Guyana could very well be a better place if we see the backs of some of these politicians.” In criminal law, incitement is the encouragement of another person to commit a crime. In common-law jurisdictions like ours, incitement to murder is illegal and is known as an inchoate offence, where harm is intended but may or may not have actually occurred. The court would usually evaluate the matter on an objective test basis without taking into account the intentions of the caller or host, but rather what a reasonable person listening to the exhortation may be prompted to do as a result of the call.
The talk show host and his partisans have already jumped on the bandwagon of “free speech” which they claim is now being trampled by the Government which they conclude must be behind the Police action. But there have always been limits to “free speech”, primarily incitement, defamation, fraud, obscenity, child pornography, fighting words, and threats. Incitement invariably leads the list and is never to be taken lightly. It is always a question of fact, however, and this will be the main issue when the extant case comes up for trial. The US has taken the lead on protecting free speech ever since they incorporated it into the First Amendment of their Constitution. In terms of the specific incitement under consideration, their courts have honed in on “true threats”, making a threat directed at someone and causing them to believe their injury or death is likely to occur, and “fighting words”, using such inflammatory speech towards a group and knowing that it will almost certainly cause a response. These are both paradigmatic examples of speech that do not receive First Amendment protections.
Our courts can expect that the lawyers for the talk show host will go after the cybercrime legislation as infringing on free speech. They can use the US “strict scrutiny” approach that is used when a protected right might be threatened. Here, they will have to prove that the intent of the law was not to curtail free speech and secondly, there is a compelling government interest in curtailing incitement.
