Sections 21(9) and (10) of the Cybercrime Code Act 2016 import an existing protection and modernise it.
Sections 21(9) and (10)
The provisions of section 362E of the Criminal Code Act (Chapter 262), relating to protection of matters of public interest, apply to this section.
For the purpose of subsection (9), “public meeting” referred to in section 362E of the Criminal Code Act (Chapter 262) includes online discussion forums whether or not they are featured on social networking sites.
Why import rather than re-enact
Rather than writing a fresh public interest defence, section 21(9) applies one that already exists in the criminal law of defamation.
The Act uses the same approach in section 18(1), which incorporates sections 229R, 229S and 229T of the Criminal Code, and in sections 28 to 30, which criminalise online breaches of the intellectual property statutes.
The benefit is consistency: the protection available to a person who speaks at a meeting or writes in a newspaper is the same as that available to a person who posts online.
Note that section 362E of the Criminal Code deals with the protection of matters of public interest in the context of the Code’s defamation provisions — covering, in general terms, publications concerning proceedings, official matters and public occasions, made in good faith and for the public benefit.
The extension of “public meeting”
Section 362E was drafted for a world of physical gatherings. Protections framed around reporting a public meeting would be of little use to someone posting in an online forum.
Section 21(10) closes the gap in the widest terms: “online discussion forums whether or not they are featured on social networking sites”.
That covers:
- Comment threads on news sites and blogs;
- Discussion groups and message boards;
- Groups, pages and comment sections on social networking platforms;
- Any other online space where discussion occurs.
The words “whether or not ... featured on social networking sites” make clear that a forum does not lose the character of a public meeting because it is hosted on a commercial platform.
What this means in practice
Papua New Guinea’s public debate takes place substantially on social media. Sections 21(9) and (10) recognise that a Facebook group discussing a provincial administration, or a comment thread on a news report, is the modern equivalent of a public meeting.
For anyone commenting on public affairs online, the practical effect is that reporting and discussion of public matters carries the same protection it would in print or in person.
That protection sits alongside the four defences in section 21(5) — truth, benefit of the public, fair comment and good faith — and the burden shift for good faith in section 21(7).
It does not protect everything said online. Section 362E protects matters of public interest in defined circumstances. A personal attack unconnected to any public matter is not within it.
It does not displace section 21(8). Where the material is of a sexual nature or depicts sexual conduct, the truth defence is unavailable regardless.
It does not protect knowingly false material. Publication with knowledge of falsity under section 21(3) carries 25 years, and the good faith that underpins the public interest protection will be absent.
It does not protect extortion. Section 21(4) concerns publication to extract a benefit, which no public interest can justify.
It applies only to section 21. Section 21(9) says the protection applies “to this section”. It does not answer a charge under section 23 — and in particular not section 23(4), which criminalises posting vulgar or obscene commentary whether or not directed at anyone in particular, and has no public interest qualification at all.
The constitutional context
Section 1(2)(b) declares that the Act restricts the right to freedom of expression conferred by section 46 of the Constitution, and that the restriction is necessary for the public interest in public safety, public order and public welfare and reasonably justifiable in a democratic society.
A criminal defamation offence carrying up to 25 years is a substantial restriction on expression. Sections 21(5) to (10) are the internal balance:
- Four defences, each a question of fact;
- A reverse onus favouring the publisher on good faith;
- The public interest protection of the general law; and
- An express recognition that online forums are public meetings.
Whether that balance is sufficient in any given case is a question for the courts, applying the constitutional test. But the structure shows Parliament addressing the point.
Practical guidance is in what you may post about someone online and how the Act affects social media use.
Sources
- Cybercrime Code Act 2016 — ss 1, 18, 21, 23, 28–30
- Criminal Code Act (Chapter 262) — ss 229R–229T, 362E
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.