Section 18 of the Cybercrime Code Act 2016 is the Act’s central child protection provision alongside section 19.
Section 18(1) — the offence
A person who, intentionally and without lawful excuse or justification, or in excess of a lawful excuse or justification, uses an electronic system or device to commit any of the offences prescribed under sections 229R, 229S and 229T of the Criminal Code Act (Chapter 262), 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.
The drafting technique
Section 18(1) does not define what child pornography is or set out the prohibited dealings. It takes the offences already in the Criminal Code — sections 229R, 229S and 229T, which sit in the Code’s division on sexual offences against children — and makes it a separate crime under this Act to commit any of them using an electronic system or device.
The advantages are obvious: no risk of the two definitions diverging, and no need to duplicate detailed provisions. The same technique appears in sections 28 to 30, which criminalise online breaches of the Copyright and Neighbouring Rights Act 2000, the Trade Marks Act (Chapter 385) and the Patents and Industrial Designs Act 2000.
What section 18(1) adds is the technological element and the penalty.
Under section 2, an electronic system includes the internet, and a device includes a mobile phone, a computer, a camera, a memory card and a hard drive.
So the element is satisfied by using a phone to take an image, a computer to store one, a network to send one, or a website to make one available.
Note also the extended meaning of “possession” in section 2, which includes having under control in or on any website, whether or not another person has actual custody, and whether or not the thing is visible. Material controlled on a remote server is possessed.
Who is a child
“Child” means, for the purposes of this Act, a person under the age of 18 years.
The same definition governs section 19 grooming, section 14 gambling, and section 22 cyber bullying — and, through section 5, identifies who is a child offender as well as who is protected.
The penalty in context
| Offence | Individual maximum | Corporate |
|---|---|---|
| s 17 pornography | 15 years / K25,000 | K100,000 |
| s 18(1) child pornography | 25 years / K100,000 | K1,000,000 |
| s 18(2) accessing child pornography | 25 years / K100,000 | K1,000,000 |
| s 19(1) child online grooming | 25 years / K100,000 | K500,000 |
| s 19(2) grooming a child under 16 | Life imprisonment | K1,000,000 |
| s 20 animal pornography | 15 years / K25,000 | K100,000 |
Section 18 raises the corporate fine from the K100,000 applicable to section 17 to K1,000,000. That matters for ICT service providers, hosting companies and platform operators — and note that section 2 defines “body corporate” to include unincorporated companies and government or public bodies.
The related exposure for providers is section 44, which makes it a crime for a provider to initiate or aid in facilitating an action resulting in the commission of an offence under this Act, to conceal or frustrate an investigation, to fail to comply with a court order requiring it to terminate or prevent a continuing offence, or to negligently allow an employee to do any of those things.
The rest of section 18
- Section 18(2) — using an electronic system or device to access child pornography, whether or not for the purpose of downloading, transmitting or facilitating a subsection (1) offence. Access alone is enough.
- Section 18(3) and (4) — a defence where the material was for a bona fide law enforcement purpose or for the benefit of the public, the latter being a question of fact.
- Section 18(5) — 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.
Forwarding is an offence. Sending such material to another person — even to report it, even to one recipient — is using an electronic device to commit the underlying offence. Material of this kind should be reported, not forwarded.
Section 18 is not in Schedule 2. It cannot be dealt with summarily, and is tried on indictment.
See also the article on protecting children online for the full set of child provisions in the Act.
Sources
- Cybercrime Code Act 2016 — ss 2, 5, 14, 17–20, 22, 28–30, 44, 48; Schedule 2
- Criminal Code Act (Chapter 262) — ss 229R, 229S, 229T
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.