Section 31 of the Cybercrime Code Act 2016 is the last offence in the Act, and in some ways the widest.
Section 31
to advertise or promote an act or omission that would constitute an offence under this Act or any other law, is guilty of a crime.
Penalty: natural person — imprisonment up to 10 years; or a fine up to K20,000; or an ICT prohibition for the term of imprisonment plus two years; or all or any of them. Body corporate — a fine up to K500,000.
“Or any other law”
The offence advertised or promoted need not be an offence under the Cybercrime Code Act. It may be an offence under any other law of Papua New Guinea — the Criminal Code Act (Chapter 262), the drugs legislation, firearms legislation, gaming legislation, customs legislation, or any of the hundreds of statutes that create offences.
What section 31 supplies is a single electronic-medium offence covering the promotion of all of them.
Examples plainly within it: a post offering to sell a prohibited drug; an online advertisement for an unlicensed firearm; a page promoting an illegal gambling operation; a listing offering to procure false documents; an advertisement for a service that would involve hacking or illegal devices.
Note the conditional. Nothing needs to have happened. There need be no completed offence, no transaction, no customer.
The question is whether the act or omission being promoted would constitute an offence if done. That makes section 31 an inchoate offence in substance — it attaches to the promotion, not the conduct promoted.
“Advertise or promote”
Advertise connotes a public announcement offering something, characteristically commercial.
Promote is wider. To promote something is to further it, encourage it, or support its progress — and it need not be commercial.
On its ordinary meaning, “promote” could reach a post encouraging others to commit an offence, a message urging participation in unlawful conduct, or content presenting an offence approvingly.
The section contains no defence — no exception for news reporting, for academic or educational discussion, for artistic depiction, or for public interest debate about whether particular conduct should be an offence at all.
Read at its widest, section 31 would reach journalism describing criminal activity, drama depicting it, and campaigning about laws the campaigner considers wrong.
Three things limit it:
- The conduct must be intentional or reckless;
- It must be without lawful excuse or justification, or in excess of one — see that phrase; and
- The words “advertise or promote” connote furtherance, not description. Reporting that an offence occurs is not promoting it.
Section 1(2)(b) acknowledges that the Act restricts freedom of expression under section 46 of the Constitution and asserts that the restriction is necessary and reasonably justifiable. Whether section 31, without any defence, satisfies section 38 of the Constitution has not been tested.
Compared with the other Division 4 offences
| Provision | Imprisonment | Fine | Body corporate |
|---|---|---|---|
| s 27(1) | 15 years | K50,000 | K500,000 |
| s 27(2) | 25 years | K100,000 | K1,000,000 |
| s 28 | 15 years | K100,000 | K1,000,000 |
| s 29 | 15 years | K100,000 | K1,000,000 |
| s 30 | 15 years | K100,000 | K1,000,000 |
| s 31 | 10 years | K20,000 | K500,000 |
Section 31 is the one Division 4 offence listed in Schedule 2, so it may be dealt with summarily by a District Court constituted by a Principal Magistrate.
That is a sensible allocation. The typical section 31 case — a single post advertising something unlawful — is a District Court matter, while a serious example can still go on indictment.
Practical points
- For platform operators. Advertisements for unlawful goods and services appear on marketplaces and social platforms constantly. A provider’s position is governed by section 44, which turns on knowledge, control and compliance with orders.
- For businesses. Advertising a service that would involve an offence — unlicensed activity, prohibited imports, unauthorised financial services — is capable of engaging section 31 independently of the licensing offence itself.
- For individuals. An offer to sell or supply something unlawful, posted online, is the completed offence. Nothing needs to be sold.
See also the spam offence and managing cybercrime risk.
Sources
- Cybercrime Code Act 2016 — ss 1, 2, 6, 16, 26–31, 44, 48; Schedule 2
- Constitution — ss 38, 46; 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.