Section 21(3) of the Cybercrime Code Act 2016 is the aggravated form of online defamation.
Section 21(3)
Where the offence under subsection (2) is committed with the knowledge that the published defamatory material is false, the offender is guilty of a crime.
Penalty: (a) for a natural person, a fine not exceeding K50,000 or imprisonment not exceeding 25 years, or both; and (b) for a body corporate, a fine not exceeding K500,000.
| s 21(2) | s 21(3) | |
|---|---|---|
| Imprisonment | Up to 15 years | Up to 25 years |
| Fine — individual | Up to K25,000 | Up to K50,000 |
| Fine — company | Up to K100,000 | Up to K500,000 |
| Mental element | Intentionally or recklessly | The same, plus knowledge of falsity |
| Triable summarily | Yes — Schedule 2 | No |
The extra element
The basic offence in section 21(2) can be committed recklessly. Subsection (3) requires knowledge that the published defamatory material is false.
So a person who publishes without checking, or who suspects the material may be untrue but publishes anyway, commits the basic offence. A person who knows it is untrue commits the aggravated one.
That is a real evidential difference. Knowledge must be proved, and will usually be established by what the publisher was told, what they had seen, or what they had themselves fabricated.
Section 21(5)(a) provides a defence that the material published was true.
Subsection (3) is the mirror image. Where truth is a complete answer, known falsity is an aggravating circumstance carrying an extra ten years.
Between the two lies the ordinary case: material that is untrue but which the publisher believed, or did not know to be false. That is section 21(2) territory, and the publisher may look to the other defences — public benefit, fair comment, or good faith — the last of which shifts the burden to the party alleging its absence under section 21(7).
What must be false
What must be known to be false is the defamatory material — defined in section 21(1) as an imputation, whether directly expressed or by implication, insinuation, innuendo or irony, made with the intention of injuring reputation or trade, or inducing others to shun, avoid, ridicule or despise the person.
Two consequences follow.
The imputation, not the words, must be false. Material can be literally accurate while conveying a false imputation by implication or juxtaposition. Where the publisher knows the imputation is false, subsection (3) is engaged.
Pure comment is harder to characterise as false. An expression of opinion is not readily described as true or false, which is why section 21(5)(c) provides a separate defence of fair comment. Subsection (3) is directed at false statements of fact.
Where the aggravated offence bites
| Conduct | Why subsection (3) |
|---|---|
| Fabricating an allegation and posting it | The publisher created the material and knows it is false |
| Publishing an allegation after being shown it is untrue | Knowledge acquired before publication |
| Republishing material the publisher has been told is false | Each act of publication is a fresh publication |
| Doctoring an image or recording and posting it | Knowledge of falsity; and consider s 13, electronic forgery |
| Creating a fake account in another’s name to post damaging material | Subsection (3); and s 15, identity theft |
| Publishing false material to extract money | Subsection (4) — the extortion form, K100,000 |
Section 21(1) defines publication as using an electronic system or device to make publicly available defamatory material to persons other than the defamed person.
Sharing, forwarding or reposting makes the material publicly available again. Where the person doing so knows it is false, subsection (3) applies to them — whether or not they originated it.
The practical rule for anyone sharing material online: if you have been told it is false, do not pass it on. The act of sharing is itself a publication, and knowledge acquired before you share is knowledge for the purposes of subsection (3).
The defences still apply
The defences in section 21(5) are available on a charge “under this section” — which includes subsection (3).
In practice truth and good faith will rarely assist a defendant who knew the material was false. But public benefit and fair comment remain available in principle, and section 21(6) makes each of them a question of fact.
So does the public interest protection in section 362E of the Criminal Code Act (Chapter 262), applied by section 21(9), with “public meeting” extended to include online discussion forums whether or not featured on social networking sites.
And note section 21(8), which removes the truth defence altogether where the material is of a sexual nature or depicting sexual conduct — even where it was produced with the knowledge or consent of the person defamed.
Sources
- Cybercrime Code Act 2016 — ss 13, 15, 21, 48; Schedule 2
- 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.