Section 21(4) of the Cybercrime Code Act 2016 is the most serious form of online defamation.
Section 21(4)
A person who, intentionally and without lawful excuse or justification, or in excess of a lawful excuse or justification, or recklessly, uses an electronic system or device to publish, or directly or indirectly threaten to publish or offer to prevent the publication of, defamatory material concerning another, for the purpose of —
(a) extorting from that other person or any other person; or
(b) inducing a person to (i) give or confer, or (ii) procure or to attempt to procure, upon or for a person, any property or benefit of any kind,
is guilty of a crime.
Penalty: (a) for a natural person, a fine not exceeding K100,000 or imprisonment not exceeding 25 years, or both; and (b) for a body corporate, a fine not exceeding K1,000,000.
Three ways of committing it
| Conduct | What it captures |
|---|---|
| Publish | Actually publishing the material, to create pressure |
| Directly or indirectly threaten to publish | The classic blackmail — publish unless paid. Indirect threats are covered, so a hint or an implication is enough |
| Offer to prevent the publication | The mirror image — offering, for a price, to stop material appearing. The person offering may not even control the material |
It catches the person who approaches a victim saying that damaging material is circulating and that they can have it suppressed — for a fee.
No threat need be made, and the person offering need not be the source. The wrong lies in trading on the prospect of publication.
Note also “directly or indirectly”. A threat conveyed through an intermediary, or by implication, is within the section.
The purpose element
Paragraph (a) — extorting from that other person or any other person. The target of the extortion need not be the person defamed. Threatening to publish material about A in order to extract money from B, A’s employer or relative, is within the section.
Paragraph (b) — inducing a person to give, confer, procure or attempt to procure, upon or for a person, any property or benefit of any kind.
Note how far paragraph (b) reaches:
- “Any property or benefit of any kind” — not confined to money. A job, a contract, a withdrawal of a complaint, a favour, silence on another matter.
- “Upon or for a person” — the benefit may go to a third party, not the offender.
- “Procure or attempt to procure” — inducing someone to try to obtain the benefit is enough.
As with the other limbs of section 21, the offence is complete on the purpose. Whether anything was obtained is irrelevant to liability.
Section 21(4) and cyber extortion
| s 21(4) | s 24(1) | s 24(2) | |
|---|---|---|---|
| Lever used | Defamatory material | Software restricting or disrupting a system | Accusation of an offence, or exposure of sensitive data |
| Object | Extortion, or inducing a benefit | Procuring monetary or other benefit | Procuring monetary or other gain |
| Imprisonment | Up to 25 years in each case | ||
| Fine — individual | K100,000 | K50,000 | K100,000 |
| Fine — company | K1,000,000 | K500,000 | K1,000,000 |
The three provisions target the same wrong — using an electronic system to force someone to pay — but by reference to different levers.
Where the threat is to publish damaging material about a person, section 21(4) fits.
Where the threat is to accuse someone of an offence, or to expose sensitive data or compromise confidential information, section 24(2) fits — and note section 24(3), which makes it immaterial whether the person accused has in fact committed the offence.
Where the lever is ransomware or similar software, section 24(1) fits.
Facts frequently satisfy more than one. Under section 3(2) the Act is also in addition to the Criminal Code Act (Chapter 262), whose extortion and demanding-with-menaces offences remain available.
Where the material is sexual
Where the defamatory publication consists of or relates to electronic writings, images, audio, visual or audiovisual recordings of a sexual nature or depicting sexual conduct, the defence of truth is not available — notwithstanding that the material was produced with the knowledge or consent of the person defamed.
That is directly relevant to section 21(4). The commonest form of this offence involves threatening to publish intimate images obtained from or of the victim. The offender cannot answer the charge by saying the images are genuine, or that the victim consented to their creation.
See the article on section 21(8). And where the person depicted is a child, section 18 and section 19 apply with far heavier penalties.
Section 21(4) is not listed in Schedule 2, so unlike section 21(2) it cannot be dealt with summarily. Practical guidance for victims is in what to do if you are a victim.
Sources
- Cybercrime Code Act 2016 — ss 2, 3, 18, 19, 21, 24, 48; Schedule 2
- 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.