Papua New Guinea criminalises a great deal of online commentary about people. The four relevant provisions of the Cybercrime Code Act 2016 overlap, and only one of them has defences.
The four provisions
| Provision | Core wrong | Defences? |
|---|---|---|
| s 21 | Publishing defamatory material electronically | Yes — s 21(8), and s 362E applied by s 21(9) |
| s 22 | Communications with or regarding a child for a bullying purpose | None |
| s 23(1) | Communications regarding another person for a harassing purpose | None |
| s 23(4) | Vulgar, obscene or profane commentary — no target needed | None |
What is comfortably lawful
1. Address the conduct or the issue, not the person. The purposes in section 23(1) — coercing, intimidating, threatening, harassing, stalking, causing emotional distress — are all directed at a person. Criticism of a decision, a policy or a performance is not a campaign against an individual.
2. Be accurate, and be able to show it. Truth matters under section 21(8), and section 21 treats knowingly false publication far more seriously.
3. Have a public purpose. Section 362E of the Criminal Code, applied by section 21(9), protects publication on matters of public interest made in good faith.
4. Stop when it is done. Repetition and persistence are what turn commentary into harassment. Section 23(1) reaches acts done “for the purpose of supporting such repeated acts”.
What carries real risk
Joining a pile-on. All three of sections 22, 23(1) and 23(4) catch a person who participates in a communication, not only the person who started it.
Sustained commentary about one individual. “Causing emotional distress” is one of the six purposes in section 23(1), and no defence of truth or public interest is provided by that section.
Swearing. Section 23(4) covers commentary using or connoting profanity or obscenity, or language that is vulgar or otherwise unacceptable — whether or not it is directed at anyone in particular. Ten years for an adult.
Anything about a child. Section 22 covers communications with or regarding a child, and rises to 25 years where harm results.
Private group chats. Neither section 22 nor section 23 requires the subject to see the material. A discussion regarding a person, circulated among others, is within them.
Administering a page. Section 23(4) reaches those who authorise, facilitate or enable the posting, which includes leaving material up.
Only section 21 has defences
Section 21(8) provides defences to a charge of defamatory publication, and section 21(9) applies the section 362E public interest protection “to this section” — meaning section 21 alone.
Sections 22, 23(1) and 23(4) contain no defences at all. They incorporate neither the section 21(8) defences nor section 362E.
So a person who publishes something true, in the public interest, about an individual’s conduct may have a complete answer to a section 21 charge and none to a section 23(1) charge, if the publication is found to have been for the purpose of causing emotional distress.
The protection in those sections comes only from the elements: the conduct must be intentional or reckless, without lawful excuse or justification, and for one of the listed purposes.
Never publish for gain
Section 21(3) deals with defamatory publication for extortion, and section 21(6) removes truth as a defence where the publication was for an extortionate purpose.
Section 24(2) goes further: threatening to accuse a person of an offence, or to expose sensitive data, with intent to procure monetary or other gain, carries 25 years — and section 24(3) makes it immaterial whether the accusation is true.
Before you post
- Is this about conduct, or about the person?
- Can I prove what I am asserting?
- Is there a genuine public purpose?
- Is a child involved, as subject or participant?
- Is the language something a court would call vulgar or obscene?
- Have I said this already? Repetition is what builds a harassment case.
- Am I gaining anything from this? If so, stop.
Section 1(2)(b) acknowledges that the Act restricts freedom of expression under section 46 of the Constitution. How far these provisions may lawfully go under section 38 of the Constitution has not been tested.
Sources
- Cybercrime Code Act 2016 — ss 1, 2, 21–24
- Criminal Code Act (Chapter 262) — s 362E; Constitution — ss 38, 46
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.