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Constitutional Law/ Data Protection

Precautionary actions linked to privacy or dignity

– Does this figure exist in the legal framework? (Source):

a) A right to ‘protection of privacy’ is enshrined in the Constitution of Barbados (Section 11). Also, Barbados Constitution in its Section 23 claims that no person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority.b) The Electronic Transactions Act contains a provision on the protection of data and privacy: Electronic Transactions Act provision regulates the disclosure of information relating to the ‘private affairs of a natural person or to any particular business’ in relation to information obtained by virtue of the Act (Section 22).

– Potential Sanction:

a) Section 11 of the Barbados Constitutionb) Any person who discloses any information in contravention of this section is guilty of an offence and is liable on summary conviction, to a fine of $10,000; on conviction on indictment, to imprisonment for a term of two years or to a fine of $10,000 or to both.

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Criminal Law

Capture and/or storage of material without consent

– Does this figure exist in the legal framework? (Source):

a) Under Section 14 of the Computer Misuse Act, (CMA) the use of computers to send messages or electronic communications that are indecent or obscene; threatening; menacing in character intending to cause the person receiving it annoyance, inconvenience, distress or anxiety is penalized.b) Section 12 of the CMA also establishes sanctions for the unauthorised access (without consent) to data/media.

– Potential Sanction:

a) Under Section 14 -Liable on summary conviction to a $10,000 fine and or 12 months imprisonment.b) Under Section 12 – (5) A person who is guilty of an offence under this section is liable on conviction on indictment to a fine of $50, 000 or to imprisonment for a term of five years or to both.

Non-consensual distribution of material

– Does this figure exist in the legal framework? (Source):

This is also covered under the above Section 14 of the CMA.

– Potential Sanction:

Under Section 14 -Liable on summary conviction to a $10,000 fine and or 12 months imprisonment.

Obtaining images captured by a third party

– Does this figure exist in the legal framework? (Source):

This is also covered under Section 12 and Section 14 of the CMA.

– Potential Sanction:

Under Section 14 -Liable on summary conviction to a $10,000 fine and or 12 months imprisonment.Under Section 12 – (5) A person who is guilty of an offence under this section is liable on conviction on indictment to a fine of $50, 000 or to imprisonment for a term of five years or to both.

Distribution of images captured by a third party

– Does this figure exist in the legal framework? (Source):

This is also covered under Section 14 of CMA.

– Potential Sanction:

Under Section 14 -Liable on summary conviction to a $10,000 fine and or 12 months imprisonment.

Crimes involving minors

– Does this figure exist in the legal framework? (Source):

In Barbados, a minor is any person under 18 y.o. (Minor’s Act 1974 – Section 3). However, under sexual consent can be given from age 16.a) The Protection of Children Act Section 3 (1) states that any person who takes distributes, shows or publishes any indecent photograph of a child is guilty of an offence.b) Section 13 of the CMA, specifically, refers to the dissemination of pornographic images of children and states person who publishes, produces or possess child pornography through a computer system is guilty of an offence (Section 13.1).

– Potential Sanction:

a) Protection of Children Act Section 9 (1) – A person who is convicted of an offence under this Act Punishment. is liable (a) on conviction on indictment to imprisonment for a term of 5 years; or (b) on summary conviction to a term of 2 years.b) By Section 13 – liable on conviction on indictment, (i) in the case of an individual, to a fine of $50,000 or to imprisonment for a term of 5 years or both; or (ii) in the case of a corporation, to a fine of $200, 000.

Threats or extortion linked to the dissemination of the material

– Does this figure exist in the legal framework? (Source):

This is also covered under Section 14 of CMA.

– Potential Sanction:

Under Section 14 -Liable on summary conviction to a $10,000 fine and or 12 months imprisonment.

Other potentially criminal behaviors, crimes of discrimination or violence against women, etc.

– Does this figure exist in the legal framework? (Source):

Sexual Offences Act, Section 3, penalizes rape.

– Potential Sanction:

Maximum penalty of life imprisonment.

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Family Law

Domestic violence

– Does this figure exist in the legal framework? (Source):

a) Under the Domestic Violence Act, the willful infliction or threat of infliction of harm by one person in a domestic relationship upon another person in that relationship and includes child abuse, emotional abuse, financial abuse, physical abuse and sexual abuse.b) Offences Against the Person Act: Section 42 on Indecent acts establishes sanctions for any indecent act in any place with intent to insult or offend any person.

– Potential Sanction:

a) Protection order: if an order is breached by Section 11, the respondent is guilty of an offence and is liable on summary conviction to a fine of $5,000 or to imprisonment for a term of 12 months or to both.b) A person could be convicted on indictment of an offence against this Act is liable to imprisonment for a
term of ten years or to a fine or to both. A person convicted summarily of an offence against this Act is liable to imprisonment for a term of two years or to a fine of $2,500 or to both.

Causes of divorce

– Does this figure exist in the legal framework? (Source):

Family Law Act: Barbados is a no-fault jurisdiction so there is no need for the spouse filing for divorce to prove any fault on the part of the other spouse. Dand divorce can be granted after one-year separation.

– Potential Sanction:

An application by a party to a marriage for a decree of dissolution shall be based on the ground that the marriage has broken down irretrievably.Whilst there is no requirement under Barbadian Law to state the reason for a divorce, non-consensual distribution of sexual images can be a trigger to apply for separation and protection order until the matter is settled.

Other related figures

– Does this figure exist in the legal framework? (Source):

Under the Family Law Act, rights of unions other than marriage are also recognized if the couple (man and a woman) have cohabited continuously for a period of five years.

– Potential Sanction:

There are no express provisions with regard to the distribution of non-consensual images in the Family Law regime other than using the criminal and civil law regime to assist with any remedies for the offended person.

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Labour Law

Workplace harassment

– Does this figure exist in the legal framework? (Source):

Under the Employment Sexual Harassment (Prevention) Act., sexual harassment includes different sexually suggestive conduct of an offensive nature. The subsection which refers to ‘transmitting sexually offensive writing or material of any kind;’ would be relevant to the dissemination of nonconsensual pornography.

– Potential Sanction:

Section 21 (2) (a) and (b) – if Respondent is found to be liable by the Tribunal that the respondent should compensate the complainant in an amount that the Tribunal determines; and such compensation may include compensation for injury to feelings and punitive and exemplary damages; the respondent should pay the costs of the complainant.

Inaction by the employer (lack of regulations or non-execution)

– Does this figure exist in the legal framework? (Source):

Under the Employment Sexual Harassment (Prevention) Act., sexual harassment includes different sexually suggestive conduct of an offensive nature. The subsection which refers to ‘transmitting sexually offensive writing or material of any kind;’ would be relevant to the dissemination of nonconsensual pornography.

– Potential Sanction:

Section 21 (2) (a) and (b) – if Respondent is found to be liable by the Tribunal that the respondent should compensate the complainant in an amount that the Tribunal determines; and such compensation may include compensation for injury to feelings and punitive and exemplary damages; the respondent should pay the costs of the complainant.

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Other Laws

Laws against gender-based violence

– Does this figure exist in the legal framework? (Source):

a) Domestic Protection Act as above in the section Family Law. Please also check the offences against the person under the Act Sexual Offences Act.b) Barbados ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and ratified the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women.
Hence, Barbados has a legal obligation to protect women and girls from domestic violence and sexual violence.

– Potential Sanction:

a) Protection order: if an order is breached by Section 11, the respondent is guilty of an offence and is liable on summary conviction to a fine of $5,000 or to imprisonment for a term of 12 months or to both.b) The State is required to put the necessary legal and administrative mechanisms in place to adequately protect women and girls from these forms of violence and to provide them with access to just and effective remedies.

Anti-discrimination

– Does this figure exist in the legal framework? (Source):

Barbados Constitution and Employment Laws as in the section Labour Laws

– Potential Sanction:

Barbados Constitution and Employment Laws as above.

Intermediary liability regulation

– Does this figure exist in the legal framework? (Source):

Electronic Transactions Act,

– Potential Sanction:

According to this act, an intermediary is not subject to any civil or criminal liability of any content created by users (Section 23).However, where an intermediary has knowledge that the content could rise to civil or criminal liability or is aware that is unlawful the intermediary shall remove the content and notify the appropriate law enforcement agency.

Are there other legal frameworks that could help a victim in your country?

– Sources:

a) The use of Computer Misuse Legislation in conjunction with the other criminal law regimes ensure that victims are protected from these type of actionsb) As above, although if the legislative regime is not clear, Barbados as a common law jurisdiction can look to precedence in English law in order to ensure that justice and protection is afforded to victims, especially in light of the international conventions which the country is subject to. Please, see relevant cases in the section on How to Navigate the Judiciary System.

– Potential Sanction:

a) Sanctions are as described previously in relation to the Computer Misuse Act. Other behaviors are also provided in terms of indecency in the Offences Against the Person Act.

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