Protection of children is one of the clearest policy threads through the Cybercrime Code Act 2016. Six provisions are directed at it.
The six provisions
| Provision | Conduct | Maximum (adult) |
|---|---|---|
| s 18 | Producing, offering, distributing, procuring or possessing child pornography | 25 years; K100,000; K1,000,000 corporate |
| s 18 | Accessing child pornography | 25 years |
| s 19(1) | Grooming a child online | 25 years |
| s 19(2) | Grooming a child under 16 | Life imprisonment |
| s 14 | A child gambling online; an operator permitting it | Operator: 25 years; K1,000,000 corporate |
| s 22 | Cyber bullying — communications with or regarding a child | 7 years; 25 if harm; life if death |
Section 18 also regulates how police must handle such material once seized.
Section 22 is the provision most often engaged
1. Participation is enough. Section 22(1) catches anyone who initiates, facilitates or participates in the communication, and anyone acting for the purpose of supporting such repeated acts. There is no safety in numbers.
2. The child need never see it. The section covers communications with or regarding a child. A group discussion about a child that never reaches them is within it.
3. Offline devices count. The section applies whether or not the device is connected to the internet.
4. The escalation turns on consequences. Seven years becomes 25 where psychological or physical harm results, and life where death results — for a child offender as well as an adult. No participant controls the consequence, which is why early intervention matters.
Where the child is the offender
Section 5 provides that a child under 10 is not criminally responsible at all, and a child between 10 and 14 is not responsible unless it is proved that they had capacity to know that they ought not to do the act.
Section 5(3) applies the Juvenile Justice Act 2014 to any offence under the Act committed by a child between 10 and 18 — not only to the offences that state a separate child penalty.
Three provisions state distinct child penalties: section 14(1), section 22 and section 23 — detention rather than imprisonment, at roughly half the adult term, generally with no fine, and with an ICT prohibition available as a complete alternative. See penalties for a child offender.
Grooming and sextortion
Section 19 addresses grooming, and section 19(2) raises the maximum to life imprisonment where the child is under 16. Section 19 also deals with profiting from it.
Where images are then used to extract money or further images, section 24(2) applies — 25 years — and section 18 will usually be engaged as well.
Section 24(3) makes it immaterial whether the accusation is true. A child or family should never be deterred from reporting by embarrassment about the underlying material.
For parents and schools
- Preserve, do not delete. Keep the original messages and account details. Police can obtain a preservation notice under section 36 the same day, and a production order under section 35 to identify an account holder.
- Report early. Section 22 escalates on consequences, and consequences take time to develop.
- Explain the law to children. Most young people do not know that joining a thread is the offence, or that the penalties reach life imprisonment where a death follows.
- Remember the child offender is also a child. The Juvenile Justice Act framework, and the availability of an ICT prohibition instead of detention, exist for that reason.
- Schools should have a written policy on devices, reporting and evidence preservation. It also assists the school, whose website administrator is an ICT service provider under Schedule 1.
See also what you can post about someone online and what to do if you are a victim of cybercrime.
Sources
- Cybercrime Code Act 2016 — ss 2, 5, 14, 18, 19, 22, 23, 24, 35, 36; Schedule 1
- Juvenile Justice Act 2014; Criminal Code Act (Chapter 262)
Before relying on anything here, read the current text of the Cybercrime Code Act 2016 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.