Section 21 of the Cybercrime Code Act 2016 makes online defamation a crime, not merely a civil wrong.
Section 21(1) — the two definitions
Using an electronic system or device to make publicly available defamatory material to persons other than the defamed person — and includes electronic writings, images, audio, visual or audiovisual recordings.
An imputation, whether directly expressed or by implication, insinuation, innuendo or irony, that concerns a person or a member of his family, whether living or dead, with the intention of —
(i) injuring the reputation of that person; or
(ii) injuring the profession or trade of that person; or
(iii) inducing other people to shun, avoid, ridicule or despise that person.
Section 21(2) — the offence
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 defamatory material concerning another person, is guilty of a crime.
Penalty: (a) for a natural person, a fine not exceeding K25,000 or a term of imprisonment not exceeding 15 years, or both; and (b) for a body corporate, a fine not exceeding K100,000.
Four features that make the section wide
The imputation need not be direct. Material that carries its meaning by implication, insinuation, innuendo or irony is defamatory material.
That covers a great deal of online expression: sarcasm, memes, suggestive juxtaposition, rhetorical questions, and comment that leaves the reader to draw the conclusion.
The imputation may concern a person or a member of his family, whether living or dead. So material about a deceased relative can found a charge in respect of the living person defamed through them.
Injuring reputation; injuring profession or trade; or inducing other people to shun, avoid, ridicule or despise the person.
The third is notably broad. Material intended to make someone an object of ridicule is defamatory material even if no allegation of fact is made about them.
Section 21(2) includes “or recklessly”. A person who publishes with conscious disregard of a substantial risk that the material is defamatory can commit the offence.
Note the interaction with the definition, which requires the imputation to be made with the intention of causing one of the three effects. The intention attaches to the material; the recklessness limb attaches to the publishing.
“Make publicly available ... to persons other than the defamed person”
Publicly available. The material must be made publicly available — so a private message sent only to the person concerned is not publication.
To persons other than the defamed person. Publication requires a third party. Telling someone what you think of them, privately, is not within section 21.
In practice, most social media posting satisfies both. A public post, a comment on a page, a message in a group, a video upload, a broadcast message — all make material available to persons other than the subject.
The definition expressly includes electronic writings, images, audio, visual or audiovisual recordings, so the medium is immaterial.
The rest of section 21
| Subsection | Effect | Maximum (individual) |
|---|---|---|
| (2) | The basic offence | 15 years / K25,000 |
| (3) | Published with knowledge that the material is false | 25 years / K50,000 |
| (4) | Publishing, threatening to publish, or offering to prevent publication, to extort or induce a benefit | 25 years / K100,000 |
| (5)–(7) | Defences: truth, public benefit, fair comment, good faith — with the burden shifting on good faith | — |
| (8) | Truth is not available where the material is of a sexual nature or depicts sexual conduct | — |
| (9)–(10) | Section 362E of the Criminal Code applies, and “public meeting” includes online discussion forums | — |
Defamation as a crime
Section 1(2)(b) expressly declares that the Act restricts the right to freedom of expression conferred by section 46 of the Constitution, and that the restriction is necessary in the public interest and reasonably justifiable in a democratic society.
Section 21 is the clearest illustration. In many jurisdictions defamation is purely civil; here it carries up to 15 years, or 25 in the aggravated forms.
The balancing mechanisms are internal to the section: the four defences in subsection (5), the burden shift in subsection (7), and the incorporation of the public interest protection in section 362E of the Criminal Code Act (Chapter 262), with “public meeting” extended to online discussion forums.
Practical guidance is collected in what you may post about someone online.
Section 21(2) is listed in Schedule 2, so it may be dealt with summarily by a District Court constituted by a Principal Magistrate. Subsections (3) and (4) are not.
Sources
- Cybercrime Code Act 2016 — ss 1, 2, 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.