Section 23(4) of the Cybercrime Code Act 2016 is the widest content offence in the Act. It sits in the section on cyber harassment, but it stands alone: it needs no victim.
Section 23(4)
(a) authorise, facilitate or enable; or
(b) write, post or effect; or
(c) entertain, encourage or participate in,
the posting of commentary, whether or not it is directed at anyone in particular, using or connoting —
- profanity or obscenity; or
- language or imagery that is vulgar; or
- language or imagery that is otherwise unacceptable; or
- language or imagery which grossly offends against accepted standards of public decency,
to any person reading such post or commentary, is guilty of a crime.
The penalty
| Offender | Custody | Fine | ICT prohibition |
|---|---|---|---|
| Child, subject to the Juvenile Justice Act 2014 | Detention up to 3 years | Up to K5,000 | Term of detention plus 2 years |
| Adult | Imprisonment up to 10 years | Up to K15,000 | Term of imprisonment plus 2 years |
| Body corporate | — | Up to K50,000 | — |
For a natural person the court may impose the custodial term, or the fine, or the ICT prohibition, or all three.
Section 23(4) is one of the few offences in the bullying and harassment group where a fine is available at all, and the only one that expressly reaches a body corporate — which matters for a site operator or a page administrator.
Nine verbs, three groups
Authorise, facilitate, enable — the language of permission and provision. A page administrator who allows the post, or a service that makes it possible, is within the words.
Write, post, effect — the author and publisher.
Entertain, encourage, participate in — the audience. “Entertain” is the most striking. Read in the sense of receiving or giving consideration to something, it reaches a person who merely engages with the post.
Nothing in the subsection requires the material to be aimed at anyone. The words are “whether or not it is directed at anyone in particular”.
What counts as vulgar?
Section 2 does not define profanity, obscenity, vulgarity or public decency. Each is left to the court.
The final descriptor — “grossly offends against accepted standards of public decency” — is a recognisable objective test, and is the narrowest of the four.
The middle one — “otherwise unacceptable” — is the widest. It is not tied to decency, to offence, or to any stated community standard. Unacceptable to whom, and by what measure, the subsection does not say.
The closing words “to any person reading such post or commentary” suggest the measure is the effect on a reader — and on the language used, any reader.
Section 17 deals with pornographic material and comes with defences in section 17(4) — legitimate medical, scientific, educational or artistic purpose, among others.
Section 23(4) has no defences at all. It does not incorporate the section 17 defences, the section 21 defamation defences, or the section 362E public interest protection of the Criminal Code.
The only limits are the elements: the conduct must be intentional or reckless, and without lawful excuse or justification, or in excess of one. See the article on that phrase.
The free expression question
Section 1(2)(b) states that the Act restricts freedom of expression and publication under section 46 of the Constitution, and that the restriction is necessary and reasonably justifiable in a democratic society having proper regard for the rights and dignity of mankind.
That declaration is the Act’s own compliance with section 38 of the Constitution, which requires a law restricting a qualified right to say so expressly and to state the public interest served.
Whether section 23(4) as drafted meets the section 38 standard — in particular the words “otherwise unacceptable”, and the absence of any defence for artistic, satirical, literary or political expression — is a question for the National Court or the Supreme Court on a proper reference. It has not been decided.
In practice
- Swearing online is capable of being an offence. Profanity is the first descriptor, and no target is required.
- Administrators are exposed. “Authorise, facilitate or enable” reaches the person running a page or group who leaves the material up. See also provider liability under section 44.
- Sharing and reacting carry risk. “Entertain, encourage or participate in” is wide enough to reach engagement short of authorship.
- Not triable summarily. Section 23(4) is not listed in Schedule 2, so it must go on indictment. See summary trial.
- Businesses should have a moderation policy. A body corporate faces a fine of up to K50,000. See managing cybercrime risk.
For practical guidance on what may safely be posted about a person, see what you can post about someone online.
Sources
- Cybercrime Code Act 2016 — ss 1, 2, 17, 21, 23, 44, 48; Schedule 2
- Constitution of the Independent State of Papua New Guinea — ss 38, 46
- Juvenile Justice Act 2014; Criminal Code Act (Chapter 262) — s 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.