Section 17 of the Cybercrime Code Act 2016 opens Division 3, the content related offences.
Section 17(1) — the offence
(a) produce pornography for the purpose of its distribution; or
(b) offer or make available pornography for public viewing; or
(c) distribute or transmit pornography to another person or the public; or
(d) procure or obtain access to pornography — whether or not by downloading or transmitting it to himself or another — for the purpose of giving effect to or facilitating the commission of any of the offences in paragraphs (b) or (c),
is guilty of a crime.
Penalty: (a) for a natural person, a fine not exceeding K25,000 or imprisonment not exceeding 15 years, or both; and (b) for a body corporate, a fine not exceeding K100,000.
The definition in section 2
(a) any photographic, film, video or other visual representation — (i) that shows a person who is, or who is depicted as, engaged in sexual activity; or (ii) which characteristics is the depiction of any part of the body of a person for or connoting a sexual purpose; or
(b) any audio representation of a person who is, or is represented as being, engaged in sexual activity; or
(c) any written material, visual, audio or audiovisual representation that advocates, counsels or encourages sexual activity — irrespective of how or through what medium it was produced, transmitted or conveyed, and including any representation produced by or from computer graphics or other electronic or mechanical means; or
(d) a representation of sexual activity or sexual engagement with animals.
Paragraph (a)(ii) extends beyond depictions of sexual activity to the depiction of any part of the body of a person for or connoting a sexual purpose. That is a broad formulation.
Paragraph (b) covers audio alone.
Paragraph (c) covers written material that advocates, counsels or encourages sexual activity — text, with no image or sound at all — and expressly includes material produced by computer graphics, so wholly synthetic depictions are within it.
Paragraph (d) anticipates section 20.
Note also that the definition covers a person depicted as or represented as being engaged in sexual activity — so no real conduct need have occurred.
What each limb requires
| Limb | Conduct | Extra element |
|---|---|---|
| (a) | Produce | For the purpose of distribution — producing for oneself is not within the limb |
| (b) | Offer or make available | For public viewing |
| (c) | Distribute or transmit | To another person or the public — one recipient is enough |
| (d) | Procure or obtain access — with or without downloading | For the purpose of giving effect to or facilitating (b) or (c) |
Each limb requires an element of dissemination. Producing for distribution, making available publicly, transmitting to another, or accessing in order to distribute or publish.
A person who obtains adult pornography for their own viewing, with no purpose of distributing or publishing it, is outside paragraph (d) because the purpose element is not satisfied.
That is a deliberate contrast with section 18(2), where accessing child pornography is an offence whether or not for the purpose of downloading, transmitting or facilitating anything.
How far the section reaches
Paragraph (c) does not require publication. Sending an image or video to one other person is transmitting it to another person.
So forwarding material by message, email or social media is capable of being the offence — carrying up to 15 years.
Note that the section requires the use of an electronic system or device, which section 2 defines to include the internet, mobile phones, computers and storage media.
If the person depicted is a child — under 18 by the section 2 definition — the relevant offence is section 18, which incorporates sections 229R, 229S and 229T of the Criminal Code Act (Chapter 262) and carries 25 years or K100,000, and K1,000,000 for a company.
Where the material depicts sexual activity with animals, section 20 applies, and can be committed recklessly.
And where sexual material is used to defame, note section 21(8): where a defamatory publication consists of material of a sexual nature or depicting sexual conduct, the defence of truth is not available — even if the material was produced with the knowledge or consent of the person defamed.
The defences to section 17 — bona fide law enforcement purpose, and benefit of the public — are dealt with in the next article. Section 17 is not listed in Schedule 2 and cannot be dealt with summarily.
Sources
- Cybercrime Code Act 2016 — ss 2, 17, 18, 20, 21, 48; Schedule 2
- Criminal Code Act (Chapter 262) — ss 229R–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.