Section 14(2) of the Cybercrime Code Act 2016 places the heavier burden on the operator rather than the child.
Section 14(2) — the offence
A gaming operator, who knowingly or recklessly, and without lawful excuse or justification, or in excess of a lawful excuse or justification, makes available to a child, lottery or other gaming activity through an electronic system or device, is guilty of a crime.
Penalty: (a) in the case of a natural person, a fine not exceeding K100,000 or imprisonment not exceeding 25 years, or both; and (b) in the case of a body corporate, a fine not exceeding K1,000,000.
| s 14(1) — the child | s 14(2) — the operator | |
|---|---|---|
| Who commits it | A child — a person under 18 | A gaming operator |
| Classification | Misdemeanour | Crime |
| Mental element | Intentionally | Knowingly or recklessly |
| Imprisonment | Up to 7 years | Up to 25 years |
| Fine | None available | Up to K100,000 / K1,000,000 corporate |
| Triable summarily | Yes — Schedule 2 | No |
Who is a “gaming operator”
“Gaming operator” means the operator of an approved game under the Gaming Control Act 2007.
“Gaming or gaming activity” means all forms of gaming regulated under that Act.
“Lottery” means a scheme for distributing prizes by lot or chance.
The offence is committed by a gaming operator — defined as the operator of an approved game under the Gaming Control Act. On its face that is the licensed sector.
But the conduct element covers making available “lottery or other gaming activity”. Lottery is defined independently and does not depend on the Gaming Control Act at all — a scheme for distributing prizes by lot or chance.
So the section reaches an approved operator who runs a prize draw as much as one who runs an approved game. And a person who runs an unapproved scheme is outside section 14(2) as a “gaming operator” — but is exposed under the Gaming Control Act itself, and potentially under section 31 of this Act if the activity is advertised or promoted online, and under section 12 if it is fraudulent.
“Knowingly or recklessly”
An operator does not have to know that a particular user is a child. It is enough to be reckless — aware of a substantial risk that children can access the service, and to proceed regardless.
That is a high bar for the industry. An online gaming service with no age verification, or with verification that is trivially defeated, is on notice that children will use it. Continuing to operate in that state is capable of being reckless.
Note the contrast with subsection (1), which requires the child to act intentionally. The Act demands more care of the operator than of the child.
See the article on the mental element for how recklessness operates elsewhere in the Act.
“Makes available to a child”
The offence is committed by making the activity available. It does not require the child to have played, staked money or won anything.
So the question is whether the service was accessible to a child, not whether a particular child used it. An operator whose platform is open to anyone with an internet connection has made it available to children unless something effective prevents that.
“Through an electronic system or device” is very wide — section 2 defines electronic system to include the internet, and device to include mobile phones and terminals.
What compliance requires
- Age verification that works. A checkbox asserting age is unlikely to displace recklessness where the operator knows such checks are routinely defeated. Verification against identity documents, payment instruments tied to adults, or third-party verification services is the direction the section points.
- Monitoring and response. Where an operator learns that children are accessing the service, continuing without change moves from recklessness towards knowledge.
- Terminal and venue controls. Because the section covers gaming whether or not by means of the internet — see subsection (1) — physical machines and local networks accessible to children are within the same concern.
- Advertising. Promotion directed at, or reaching, children raises the same risk. And section 31 makes it a crime to use an electronic system to advertise or promote an act or omission that would constitute an offence under the Act or any other law.
- Corporate exposure. Section 2 defines “body corporate” to include unincorporated companies and government or public bodies. The K1,000,000 fine is among the highest in the Act — see corporate fines.
Section 14(2) states a penalty for a natural person as well as a body corporate. Directors, managers and staff who knowingly or recklessly make gaming available to children are personally exposed to 25 years or K100,000.
That mirrors the approach taken to ICT service providers, where section 2 brings employees, servants, agents and assignees within the definition of provider, and section 44 states penalties for both natural persons and companies.
Section 14(2) is not listed in Schedule 2 and cannot be dealt with summarily.
Sources
- Cybercrime Code Act 2016 — ss 2, 5, 12, 14, 31, 44, 48; Schedule 2
- Gaming Control Act 2007; Juvenile Justice Act 2014
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.