Section 18(2) of the Cybercrime Code Act 2016 stands apart from the equivalent provision for adult material.
Section 18(2) — the offence
A person who, intentionally and without lawful excuse or justification, or in excess of a lawful excuse or justification, uses an electronic system or device to access child pornography — whether or not for the purpose of downloading or transmitting it either to himself or another person, or, for the purpose of giving effect to or facilitating the commission of any of the offences in subsection (1) — is guilty of a crime.
Penalty: (a) for a natural person, a fine not exceeding K100,000 or imprisonment not exceeding 25 years, or both; and (b) for a body corporate, a fine not exceeding K1,000,000.
“Whether or not” is the key phrase
Section 17(1)(d) makes it an offence to procure or obtain access to pornography — but only for the purpose of giving effect to or facilitating the offences of making available for public viewing or distributing.
Section 18(2) removes the purpose requirement entirely. Access is an offence whether or not it was for downloading, transmitting, or facilitating anything.
So for adult pornography, private viewing without any distributive purpose is outside section 17. For child pornography, viewing is the offence.
| s 17(1)(d) — adult material | s 18(2) — child material | |
|---|---|---|
| Conduct | Procure or obtain access | Access |
| Purpose required | Yes — to facilitate s 17(1)(b) or (c) | No |
| Downloading required | No — “whether or not by downloading” | No — “whether or not for the purpose of downloading” |
| Maximum | 15 years / K25,000; K100,000 corporate | 25 years / K100,000; K1,000,000 corporate |
No download, no copy, no storage
The words “whether or not for the purpose of downloading or transmitting it” make clear that nothing need be saved. Streaming, viewing on a web page, or opening material in a message is accessing it.
That closes an argument that would otherwise arise from the technology: that material held only in a browser cache was never deliberately acquired. Section 18(2) makes the act of accessing the offence.
Note that “possession” in section 2 is separately extended to include having under control in or on any website, whether or not visible — which matters for the underlying Criminal Code offences incorporated by section 18(1).
The mental element still applies
Section 18(2) opens with the standard formula — intentionally and without lawful excuse or justification, or in excess of a lawful excuse. There is no recklessness limb.
So the access must be deliberate. Material that appears unbidden — in a pop-up, in an unsolicited message, through a mislabelled link — is not accessed intentionally.
What matters is what happens next. A person who encounters such material accidentally should close it, not explore it, and should report it. Continuing to view, navigating further, or retaining it moves from accident to intention.
And forwarding it — even to report it — is a separate offence under section 18(1), because transmitting is one of the underlying Criminal Code offences committed using an electronic device. Report the location and the circumstances; do not send the material.
The defence applies to subsection (2)
It is a defence to a charge under this section — which includes subsection (2) — if the child pornography was for a bona fide law enforcement purpose or for the benefit of the public; and whether the act was for the benefit of the public is a question of fact.
That is essential for investigators, who must be able to access such material in the course of an investigation, and for those who must review it in judicial proceedings. See the article on the defences, and note the mandatory destruction duty in section 18(5).
Practical points
- For individuals. There is no lawful private viewing of child sexual abuse material. Section 18(2) removes any argument that no harm was done because nothing was shared.
- For employers and schools. Where such material is found on a device, the material should be preserved in place and reported to police — not opened, copied, forwarded or examined further. Part IV gives police the powers to deal with it: section 32 search and seizure, section 36 preservation notices, and section 38 restraining orders.
- For ICT service providers. Note the tension in Part V. Section 44(1)(a) makes it a crime for a provider to monitor user information or actively seek facts indicating illegal activity without lawful excuse — while section 44(1)(b) and (d) make it a crime to facilitate an offence or to fail to comply with a court order to terminate or prevent one. Providers need clear legal footing for whatever they do.
- Not triable summarily. Section 18 is not in Schedule 2. See summary trial.
Sources
- Cybercrime Code Act 2016 — ss 2, 17, 18, 32, 36, 38, 44, 48; Schedule 2
- Criminal Code Act (Chapter 262) — ss 229R–229T
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.