Octopus Cybercrime Community

In 2019, Fiji started the reform of the legal framework on cybercrime and electronic evidence This was finalized on 12 February 2021, when the Cybercrime Act was passed by the Parliament of Fiji.

Except for Section 34, the Act came into force on 14 November 2022: https://laws.gov.fj/LawsAsMade#. Section 34 refers to the 24/7 point of contact network which is in the process of being established The act regulates offences against the confidentiality, integrity and availability of computer data and computer systems, computer-related and content-related offences, procedural measures and international cooperation. Upon coming into effect, the Act  has replaced the existing cybercrime legislation, namely Section 336 to 346 of the Crimes Act  2009 that dealt with computer-related offences.

In aligning its legislation to the international standards, Fiji benefitted from the support of the Council of Europe.

Posts and Telecommunications Act 1989, as subsequently amended

• Part IV

Various offences for modification, interception and disclosure of messages (applicable only to telecommunications employees)

Crimes Act 2009

Cybercrime Act 2021:

• Unauthorized access to computer systems (Part 2, art. 5)
• Unauthorized interception of computer data or computer systems (Part 2, art. 6)
• Unauthorized acts in relation to computer data or computer systems (Part 2, art. 7)
• Unlawful supply or possession of computer system or other device, or computer data or computer program (Part 2, art. 8)
• Computer-related forgery (Part 2, art.9)
• 10. Computer-related extortion and fraud (Part 2, art. 10)

The following substantive articles are regulated also, however fall outside the scope of the Budapest Convention:

• Identity theft (Part 4, art. 11)
• Theft of telecommunication services (Part 4, art. 12)
• Disclosure during an investigation (Part 4, art. 13)
• Failure to provide assistance (Part 4, art. 14)

The criminal procedural rules are generally regulated by the Criminal Procedure Act 2009, with Part 3 Section 15 and Part 9 regulating search warrants, for general search and seizure powers (no clear extension to electronic evidence).

With respect to procedural powers, as provided by the Budapest Convention, the powers available under the  Cybercrime Act 2021under Part 5 – Procedural measures of the Cybercrime Act include:

• 15. General procedural powers
• 16. Search and seizure (amending and completing section 15 of the Criminal Procedure Decree 2009
• 17. Admissibility of evidence
• 18. Expedited preservation of stored computer data
• 19. Expedited preservation and partial disclosure of traffic data
• 20. Production order
• 21. Search and seizure of stored computer data
• 22. Real-time collection of traffic data
• 23. Interception of content data

Constitution of the Republic of Fiji guarantees through subsection 1 of section  24 the Right to privacy that states that “every person has the right to personal privacy, which includes the right to- A) confidentiality of their personal information; B) confidentiality of their communications; and C) respect for their private and family life”. However, through subsection 2) To the extent that it is necessary, a law may limit, or may authorise the limitation of, the rights set out in subsection 1.

• Online Safety Act 2018 https://laws.gov.fj/Acts/DisplayAct/2462
• Electronic Transactions Act 2008 https://www.laws.gov.fj/Acts/DisplayAct/3209
• Crimes Act  2009
• Copyright Act 1999
• Criminal Procedure Act 2009
• Extradition Act 2003
• Mutual Assistance in Criminal Matters Act 1997
• Posts and Telecommunications Act  1989

The Attorney-General operates as the central authority duly authorized to make and receive requests for mutual legal assistance. In practice, it is the Director of Public Prosecutions (DPP) who verifies compliance and implements all requests. Foreign authorities may seek the advice of the DPP, and draft requests can be forwarded to him for comment, to ensure that they comply with Fiji statutory requirements and requests are processed and executed in a timely manner.

Legal Framework

Extradition Act 2003

• Extensive sections  covering rules and procedure for extradition, for an offence with a minimum penalty of 1 year and with dual criminality
• Some sections for the taking of evidence for the purpose of criminal proceedings in a requesting country Mutual Assistance in Criminal Matters Act 1997.
• Extensive sections  covering rules and procedures for mutual legal assistance in criminal matters, extending to any foreign country that has an arrangement or a reciprocal agreement on assistance in criminal matters with Fiji
• Taking of evidence or production of documents can be undertaken or requested for the purposes of a proceedings or investigation in relation to any criminal matter.
• Search and seizure powers can be exercised/requested for offences with a minimum penalty of 1 year
• The Extradition Act 2003 regulates matters of extradition, but no bilateral or multilateral prisoner transfer agreements seem to have been in effect in the country.

The Cybercrime Act 2021 introduces general principles relating to international cooperation (Part 6) with respect to cybercrime and electronic evidence, that specifies that the Government may cooperate with any foreign government, 24/7 Network, foreign agency for the following purposes:

a) investigations or proceedings concerning offences related to computer systems;

b) electronic communication or data;

c) the collection of evidence in electronic form of an offence;

d) obtaining expeditious preservation and disclosure of traffic data or data by means of a computer system or real-time collection of traffic data associated with specified communications, or interception of content data or any other means, power, function or provision under this Act.

Fiji is member of:

• Pacific Islands Chiefs of Police
• Pacific Islands Forum
• Pacific Islands Law Officers’ Network (PILON)
• INTERPOL
• Pacific Cyber Security Operational Network (PaCSON)

Fiji is a signatory part to these international conventions or treaties:

• United Nations Convention against Transnational Organized Crime (since 2017 – with a reservation: “Fiji reserves waiving its sovereign rights and declares that it does not consider itself bound by the provisions of paragraph 2 of article 35.”
• United Nations Convention against Corruption (since 2008)
• Convention on the Rights of the Child (since 1993) and Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (since 2021)
• United Nations Convention on the Use of Electronic Communications in International Contracts
• In progress- United Nations Open Ended Working Group

Fiji was invited to accede to the Budapest Convention in December 2021.