Section 17(2) of the Cybercrime Code Act 2016 provides a narrow defence to the pornography offence.
Sections 17(2) and (3)
It is a defence to a charge for an offence under subsection (1)(b), (c) and (d) if the pornography was for a bona fide law enforcement purpose or for the benefit of the public.
Section 17(3): Whether the doing of an act referred to in subsection (1) is for the benefit of the public, is a question of fact.
Why paragraph (a) is excluded
Section 17(2) names paragraphs (b), (c) and (d). It does not name (a) — producing pornography for the purpose of its distribution.
The logic is that the other three limbs can all describe conduct someone might undertake for a legitimate reason: an investigator obtaining material as evidence, a broadcaster transmitting material in a news report, a researcher accessing material for a study.
Producing pornography for distribution is different. Parliament evidently took the view that no law enforcement or public benefit purpose requires new pornography to be made.
So a person charged under paragraph (a) cannot rely on section 17(2) at all. Their answer must lie in the elements of the offence itself — that the material was not pornography within the section 2 definition, that they did not produce it, or that they did not produce it for the purpose of distribution.
“A bona fide law enforcement purpose”
Police, prosecutors and investigators must be able to obtain, hold, transmit and produce pornographic material in the course of investigating and proving offences under sections 17 to 20.
Bona fide means the purpose must be genuine. A person who obtains material ostensibly for an investigation but in fact for another reason is outside the defence.
The defence complements the powers in Part IV. Section 32 allows seizure of data under warrant; section 33 allows police to operate devices, copy data and move equipment; section 35 allows production orders. Without a defence, exercising those powers in a pornography investigation would itself be within section 17(1)(d).
Compare the parallel and stricter regime for child pornography: section 18(5) requires that where child pornography is stored for a bona fide law enforcement purpose, all traces, copies or storage shall be removed, deleted or otherwise destroyed once it is no longer lawfully required. Section 17 contains no equivalent duty.
“For the benefit of the public”
There is no statutory test. The court decides on the evidence whether the act was for the public benefit.
- Journalism — reporting on exploitation, trafficking or abuse, where some description or depiction is necessary to the report.
- Medical and educational material — sexual health education, clinical teaching. Note that paragraph (c) of the section 2 definition covers material that advocates, counsels or encourages sexual activity, which on its face could capture health education; the public benefit defence is what answers it.
- Research and scholarship.
- Judicial and legal proceedings — producing material as evidence, though that will usually also fall within the law enforcement limb.
The same phrase — “for the benefit of the public” — appears in section 18(3), section 21(5)(b) and section 25(3), and in each case the Act makes it a question of fact. It is the Act’s principal balancing mechanism against the freedom of expression that section 1(2)(b) acknowledges it restricts.
Who must prove what
Unlike section 21(7) — which expressly provides that where the defence of good faith is raised, the burden of proof shifts to the party alleging the absence of good faith — section 17 says nothing about onus.
Compare also section 25(3), which requires the defendant to prove that the disclosure was for the benefit of the public.
The general principles of criminal responsibility apply through section 3(1), which imports the Criminal Code Act (Chapter 262) provisions on criminal practice and procedure.
In practical terms, a defendant relying on section 17(2) will need to put evidence of the purpose before the court, since section 17(3) makes it a question of fact and the facts will be within the defendant’s knowledge.
Practical points
- Record the purpose contemporaneously. Because the question is one of fact, evidence created at the time — investigation records, editorial decisions, research approvals — is worth far more than later explanation.
- Keep within the purpose. The offence opens with “in excess of a lawful excuse or justification”. Material obtained for a legitimate purpose and then retained, shared or used for another is outside the defence. See the article on the mental element.
- Do not assume the defence covers production. Paragraph (a) is excluded, and there is no route back into the defence for it.
- Different rules for child material. The section 18(3) defence is expressed to apply to this section — that is, to the whole of section 18 — but section 18(5) adds a mandatory destruction duty that has no counterpart here.
- No defence for animal pornography. Section 20 contains no defence provision at all — and, unlike section 17, it can be committed recklessly.
Sources
- Cybercrime Code Act 2016 — ss 1, 2, 3, 17, 18, 20, 21, 25, 32–35
- Criminal Code Act (Chapter 262)
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.