Section 22 of the Cybercrime Code Act 2016 is the child-specific counterpart of cyber harassment.
Section 22(1) — the offence
(a) initiate; or (b) facilitate; or (c) participate in,
any communication or online discussion or posts with or regarding a child, directly or indirectly — with or without any exchange of messages, electronic writings, images, audio, visual or audiovisual recordings — with the child subject of the bullying, for the purpose of —
(i) bullying, intimidating, threatening, demeaning, ridiculing or stalking, or causing emotional distress; or
(ii) supporting such repeated acts,
in respect of that child, is guilty of a misdemeanour.
The penalty
| Offender | Penalty |
|---|---|
| Child offender — subject to the Juvenile Justice Act 2014 | Detention up to 3 years; or an ICT prohibition for the term of detention plus two years; or both |
| Adult offender | Imprisonment up to 7 years; or an ICT prohibition for the term of imprisonment plus two years; or both |
Section 22 offers imprisonment or detention, an ICT prohibition, or both — but no fine, and states no separate penalty for a body corporate.
Contrast section 23(4), which does provide a fine and a corporate penalty of K50,000.
Initiate, facilitate, participate
The three verbs cover the whole of a bullying episode:
Initiate — starting it.
Facilitate — making it possible: creating the group, sharing the material, providing the platform or the audience.
Participate in — taking part: commenting, sharing, adding to a thread.
That is the point of the section. Online bullying is collective. A person who adds a single comment to a pile-on has participated in a communication regarding a child, and where the purpose is one of those in sub-paragraph (i), commits the offence.
Sub-paragraph (ii) reinforces it: acting for the purpose of supporting such repeated acts is itself within the offence.
“With or regarding a child”
The communication may be with the child or regarding the child, directly or indirectly, and with or without any exchange of messages with the child.
So a group discussion about a child, which the child never sees and is never sent, is within the section.
That is a deliberate and important choice. Much of the harm of online bullying comes from material circulated among peers rather than sent to the victim.
Note also “whether or not it is connected to the internet”. Bullying by direct messaging on a local network, by Bluetooth transfer, or on a school system is equally covered.
The seven purposes
Bullying; intimidating; threatening; demeaning; ridiculing; stalking; or causing emotional distress.
The list goes well beyond threats. Demeaning and ridiculing cover mockery; causing emotional distress covers conduct with no other identifiable object.
Combined with the recklessness limb in the opening words, that means a person who joins a mocking thread about a schoolmate, with conscious disregard of the obvious risk of distress, may commit the offence.
The seriousness escalates sharply. Section 22(2) raises the adult maximum to 25 years where psychological or physical harm results; section 22(3) provides life imprisonment where death results — for a child offender as well as an adult.
Section 22 protects only children
| s 22 — cyber bullying | s 23 — cyber harassment | |
|---|---|---|
| Victim | A child — under 18 | Another person — any age |
| Purposes | Bullying, intimidating, threatening, demeaning, ridiculing, stalking, causing emotional distress | Coercing, intimidating, threatening, harassing, stalking, causing emotional distress |
| Basic maximum (adult) | 7 years, or an ICT prohibition, or both | |
| Where harm results | 25 years — s 22(2) | 10 years — s 23(2) |
| Where death results | Life imprisonment — ss 22(3), 23(3) | |
| Extra offence | — | s 23(4) — vulgar or obscene commentary |
The basic offences carry the same maximum. But where harm results, section 22(2) provides 25 years against section 23(2)’s 10.
Where the victim is an adult, section 23 applies instead. And where the offender is a child between 10 and 18, section 5 and the Juvenile Justice Act 2014 govern.
Sections 22(1) and (2) are listed in Schedule 2 and may be dealt with summarily. Section 22(3) is not. Further guidance is in protecting children online and penalties for a child offender.
Sources
- Cybercrime Code Act 2016 — ss 2, 5, 22, 23, 48; Schedule 2
- Juvenile Justice Act 2014; 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.