“The provision [used to prosecute Rayad Mohammed] was enacted in 1951. Yes, 1951. It was enacted to deal with the “misuse of telephone facilities and false telegrams. The legislature at the time sought to capture offensive messages that may have been transmitted by landlines and telegrams.
“It is a stretch, a painful one at that, to suggest that online activities are caught by this section—even if those activities are facilitated through one’s mobile phone.”
The following Letter to the Editor regarding the criminal prosecution of Rayad Mohammed for a grossly offensive Facebook post aimed at the family of Prime Minister Dr Keith Rowley was submitted by barrister and senior lecturer Dr Emir Crowne BA, LLB, LLM, LLM, PhD, LEC:
Rayad Mohammed, the author of a morally condemnable Facebook post, was recently charged under section 106 of the Summary Offences Act. That section states that:
“Any person who—
(a) sends any message by telephone which is grossly offensive or of an indecent, obscene, or menacing character; or
(b) sends any message by telephone, or any telegram, which he knows to be false, for the purpose of causing annoyance, inconvenience or needless anxiety to any other person; or
(c) persistently makes telephone calls without reasonable cause and for any such purpose as mentioned above, is liable on summary conviction to a fine of two hundred dollars or to imprisonment for one month.”
The provision was enacted in 1951. Yes, 1951. It was enacted to deal with the “misuse of telephone facilities and false telegrams.” The legislature at the time sought to capture offensive messages that may have been transmitted by landlines and telegrams.
It is a stretch, a painful one at that, to suggest that online activities are caught by this section—even if those activities are facilitated through one’s mobile phone.
To be successfully prosecuted under the Criminal Law, there must be a statutory wrong. In the absence of clear statutory language, there can be no criminal wrongdoing. Unlike other areas of law (like Torts), there are no ‘judge made’ crimes.
To borrow the words of the House of Lords in R v. Gold and Schifreen,  2 WLR 984 (a case concerning alleged computer hacking): it is a “Procrustean attempt to force the facts of the present case into the language of an Act not designed to fit them”.
Indeed, if so-called cybercrimes were caught under this section—and others—there would be no reason for specific cybercrime legislation in the first place. We could simply rely on extremely dated laws and their whopping TT$200 fines.
To be clear, the language used in the Facebook status (which I shall not repeat), was disgusting. There is no denying that. But as the US Supreme Court recently remarked in Matal v. Tam, 582 U. S. ____ (2017) (a case concerning offensive trademarks):
“The Government has an interest in preventing speech expressing ideas that offend. And, as we [the Supreme Court] have explained, that idea strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate’.” (citing United States v. Schwimmer, 279 U. S. 644, 655 (1929)
It was a clear message from the US Supreme Court that free speech protects unpopular speech with as much force and vigour as it does popular/mainstream speech.
Again, to be clear, I thoroughly disagree with the content of Mr Mohammed’s Facebook status: but he committed no crime. The State had no business detaining him, or charging him, as there was no specific criminal law breached in this instance.
Until specific, and constitutionally-sound, laws are enacted to deal with so-called cybercrimes of this nature, Mr Mohammed is simply a target of the State’s excessive reach.