Octopus Cybercrime Community

Both substantive law and procedural powers corresponding to the Budapest Convention are largely in place.

The Cybercrimes Act, 2010 provided criminal sanction for the misuse of computer systems or data and the abuse of electronic means of completing transactions and to facilitate the investigation and prosecution of cybercrime. It was repealed and replaced by the Cybercrimes Act of 2015.

The Cybercrimes Act of 2015 introduces new offenses such as computer related fraud and forgery, use of computer for malicious communication and the unauthorized disclosure of an investigation. Child pornography offences are provided under the Child Pornography (Prevention) Act 2009.

Procedural law provisions under the Cybercrime Act contain all powers under the Budapest Convention with exception of real-time monitoring of traffic data and interception of content.

The Cybercrimes Act of 2015 repealed and replaced the Cybercrimes Act of 2010. The 2015 act defines terms such as computer, damage, data, electronic in its section 2, and incorporates new offences in Part II. It criminalises the unauthorised access (section 3), modification (section 5), interception of computer program or data (section 6), obstruction of operation (section 7), as well as the access with intent to commit or facilitate commission of offence (section 4), computer related fraud or forgery (section 8) and unlawfully making available devices or data for commission of offence (section 10). The Act also criminalises the use of computers for malicious communication (section 9).

Section 4 of the Child Pornography (Prevention) Act of 2009 criminalises the production, distribution, import, export and possession of child pornography, and is largely consistent with the Budapest Convention.

Section 114(1)(c) and (d) of the Copyright Act, as amended in 2015, criminalises the infringement of copyright through electronic devices, and would appear to cover aspects under the Budapest Convention.

Procedural aspects are prescribed in Part III of the Cybercrimes Act of 2015, “Investigations”. These include: preservation of data (section 17), search and seizure warrants (section 18), record of seized materials (section 19), forfeiture (section 20) and production order (section 21).

The Interception of Communications Act (2002) generally enables law enforcement to conduct interception of the content of telecommunications or traffic data associated therewith. It is not clear whether telecommunications would include transmissions of computer data to, from and within a computer system, though if broadly interpreted, these provisions would appear to enable the real-time collection of traffic data and interception of content data.

The Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act (2011) enshrines the right to life (section 13.3.a), equality before the law (section 13.3.g), equitable and human treatment by any public authority (section 13.3.h), to everyone to protection from search of the person and property; respect for protection of private and family life, and privacy of the home; and protection of other property and of communication (section 13.3.j), to due process (section 16) and protection of property rights (section 15).

In 2020, Jamaica adopted the Data Protection Act of 2020, which sets out the rights of data subjects, requirements for data controllers, standards and exemptions for processing personal data and enforcement provisions.

• Evidence Act (1843)
• Extradition Act (1991)
• Interception of Communications Act (2002)
• Child Pornography (Prevention) Act (2009)
• Sexual Offences Act (2009)
• Financial Investigations Division Act (2010)
• Cybercrimes Act (2010, repealed and replaced by the Cybercrimes Act, 2015)
• Criminal Justice (Suppression of Criminal Organizations) Act (2014)
• Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act (2011)
• Data Protection Act (2020)

The Mutual Assistance in Criminal Matters Act (1995) (MACMA) provides general enabling powers for mutual assistance. However, there are no specific provisions enabling international cooperation with respect to electronic evidence or associated specialised powers.

Under the MACMA, a country requesting assistance from Jamaica should either be (a) a designated Commonwealth country or (b) a treaty country. A designated Commonwealth country is one that has been identified in an order made by the Minister with responsibility for Justice as being a Commonwealth country that can receive assistance from Jamaica. A treaty country is defined as a country that is a party to a relevant treaty (whether bilateral or multilateral) and that country has been so identified by an order of the Minister with responsibility for Justice.

Countries that do not fall into either of these categories have been able to receive assistance from Jamaica provided that the assistance requested does not require any intrusive methods of investigation such as a search warrant or access to financial records.

Section 4(1A) of the Interception of Communications Act provides basis for the disclosure of intercepted communications (content data and traffic data) to a foreign government on certain conditions.

Jamaica published guidelines in 2017 for authorities outside Jamaica regarding requests for Mutual Legal Assistance in Criminal Matters.

The principal authority in Jamaica responsible for the execution of mutual legal assistance in criminal matters is the Office of the Director of Public Prosecutions (ODP). The ODPP will also accept requests that require informal cooperation and direct them to the appropriate competent authority.

Requests for preservation of call data and other electronic records can be made to the Counter Terrorism and Organised Crime Investigation Branch in order to effectively and successfully make an application through the formal channel.