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Cybercrime Code Act 2016

PAPUA NEW GUINEA

Cybercrime Code Act 2016


No. 35 of 2016
Certified on: 13 DEC 2016


ARRANGEMENT OF SECTIONS.

PART I. - PRELIMINARY.

Division 1. - Compliance with Constitutional Requirements.

  1. Constitutional requirements.
  2. Interpretation -

PART II. - JURISDICTION.

  1. Application.
  2. Effect of changes in law.
  3. Age of criminal culpability.

PART III. - OFFENCES AND PENALTIES.

Division 1. - Offences Related to the Integrity of Data and Electronic Systems or Devices.

  1. Unauthorised access or hacking.
  2. Illegal interception.
  3. Data interference.
  4. System interference.
  5. Data espionage.
  6. Illegally remaining.

Division 2. - Computer Related Offences.

  1. Electronic fraud.
  2. Electronic forgery.
  3. Electronic gambling or lottery by a child.
  4. Identity theft.
  5. Illegal devices.

Division 3. - Content Related Offences.

  1. Pornography.
  2. Child pornography.
  3. Child online grooming.
  4. Animal pornography.
  5. Defamatory publication.
  6. Cyber bullying.
  7. Cyber harassment.
  8. Cyber extortion.
  9. Unlawful disclosure.
  10. Spam.

Division 4. - Other Offences.

  1. Cyber attack.
  2. Online copyright infringement.
  3. Online trade mark infringement.
  4. Patent and industrial designs infringement.
  5. Unlawful advertising.

PART IV. - PROCEDURE IN SEARCH, EVIDENCE, INVESTIGATION, ETC.

Division 1. - Authorised Search and Seizure.

  1. Search.
  2. Search powers.
  3. Assistance.

Division 2. - Preservation of Evidence.

  1. Production orders.
  2. Expedited preservation.
  3. Partial disclosure.
  4. Restraining orders.

Division 3. - Powers of Investigation.

  1. Authorised interception.
  2. Collection of traffic data.
  3. Forensic tools.

Division 4. - Evidence and Admissibility.

  1. Judicial notice.
  2. Electronic evidence.

PART V. - ICT SERVICE PROVIDERS.

  1. Criminal liability of ICT service providers.
  2. Disclosure of details of an investigation.

PART VI. - INTERNATIONAL CO-OPERATION.

  1. Mutual assistance.
  2. Extradition.

PART VII. - CERTAIN INDICTABLE OFFENCES, REGULATIONS, ETC.

  1. Indictable offences triable summarily.
  2. Rules, etc.
  3. Regulations.

Schedules.

SCHEDULE 1.

SCHEDULE 2.


No.35 of 2016.


AN ACT
entitled

Cybercrime Code Act 2016,

Being an Act to define and establish acts or omissions constituting offences committed through the use of information and communication technology or cybercrime, and for related purposes,

MADE by the National Parliament to come into operation in accordance with a notice in the National Gazette by the Head of State, acting on advice.

PART I. - PRELIMINARY.

Division 1. - Compliance with Constitutional Requirements.

  1. CONSTITUTIONAL REQUIREMENTS.
(1) For the purposes of Section 41 of the Organic Law on Provincial Governments and Local-level Governments, it is declared that this law relates to a matter of national interest.
(2) This Act, to the extent that it regulates or restricts a right or freedom referred to in Subdivision III.3.C. (qualified rights) of the Constitution, namely -

of the Constitution, that is necessary for the purpose of giving effect to the public interest in public safety, public order and public welfare and is reasonably justifiable in a democratic society having proper respect and regard for the rights and dignity of mankind taking into account the National Goals and Directive Principles and Basic Social Obligations, because of the risks cybercrime poses to public safety, public order and public welfare, as well as to the successful social and economic development of Papua New Guinea and its citizens.

  1. INTERPRETATION.

In this Act, unless the contrary intention appears -

"applications service" means a service (for facilitating communications by means of guided or unguided electromagnetic energy) provided via one or more network services, but does not include such a service provided solely on the retail customer side of the network boundary;

"applications service provider" means an ICT Service Provider providing applications services;

"body corporate" means a company whether incorporated or unincorporated and includes government or public bodies, as well as terrorist groups or organisations;
"child" means, for the purposes of this Act, a person under the age of 18 years;
"communication" includes any communication of content -
"computer" means an electronic, magnetic, optical, electrochemical, or other data processing device, or a group of such interconnected or related devices, performing logical, arithmetic, storage and display functions, and includes any data storage facility or communications facility directly related to or operating in conjunction with such device or group of such interconnected or related devices, but does not include an automated typewriter or typesetter, or a portable hand held calculator or other similar device which is non-programmable or which does not contain any data storage facility;
"computer program" means data representing a set of instructions or statements that, when executed in a computer or other electronic device, causes the computer or electronic device to perform a function;
"content" means information in any combination or form including speech, music or other sounds, data, text, writing, signs, signals or images (animated or otherwise);
"content service" means -
"content service provider" means an ICT Service Provider providing content services;
"court" means the District Court or the National Court as appropriate;
"criminally responsible" has the same meaning as defined in Section 1 of the Criminal Code Act (Chapter 262);
"critical infrastructure" refers to the basic facilities, services, and installations needed for the functioning of a community, society or government including but not limited to transportation, communication systems, water supply, electricity supply, banking services, public institutions, including health facilities, post offices and education facilities;
"data" means any representation of facts, concepts, information (being either text, audio, video, audiovisual or images) machine readable code or instructions, in a form suitable for processing in an electronic system or device, including a program suitable to cause an electronic system or device to perform a function;
"data traffic" means any electronic data relating to a communication by means of an electronic system or device, generated by an electronic system or device that formed a part in the chain of communication, indicating the communication's origin, destination, route, time, date, size, duration, or type of underlying service;
"device" includes but is not limited to -
"electromagnetic" means the interaction between electronic and magnetic fields producing energy that is propagated through free space or through a material medium in the form of electromagnetic waves such as radio waves, visible light, gamma rays, and also refers to the emission and transmission of such radiant energy;
"electronic communication" means a transmission of data in any form by means of guided or unguided electromagnetic energy;
"electronic output" means a statement or a representation whether in written, printed, pictorial, film, graphical, audio, visual, audiovisual or other form -
"electronic system" means a system consisting of hardware or software, or a group of interconnected or related systems or devices, one or more of which, under a program, performs automatic (that is without direct human intervention) processing, generating, sending, receiving, or storing of data and includes, but is not limited to, electronic devices, the internet, input, output and storage facilities;
"function" means a task that includes logic, control, arithmetic, deletion, storage and retrieval and communication or telecommunication to, from or within a computer or other electronic device;
"hacking" means the act of exploring programs or determining the limitations of a computer, electronic system or device or network, for the purposes of gaining unauthorised access to such computer, electronic system or device, or network;
"hinder" means any act which interferes with the proper functioning of an electronic system or device, including but not limited to cutting or disrupting the electricity supply to that electronic system or device;
"ict" means information and communications technology;
"ict service" has the same meaning as 'ICT service' under Section 4 of the National Information and Communications Technology Act 2009 and includes, but is not limited to, the services provided by an ICT Service Provider;
"ict service provider" means a person who provides content, applications or network services or a combination of such services, including, but not limited to, those identified in Schedule 1 and includes their employees, servants, agents or assignees;
"image" means any picture, photograph, depiction, animation or visual representation of an object, scene, person, animal or abstraction;
"interception" means tapping into an electronic communication not directed to the one who is tapping into such communication for the purpose of acquiring, viewing or capturing such communication whether by earth bound (wired, cable) wireless, electronic optical, magnetic or other means during transmission through the use of any technical device;
"interference" means tampering with the integrity of information content or electronic data, or systems and includes one or more of the following:
of electronic data or electronic systems;
"malicious software" means malware or software that is intended to damage or disable an electronic system or device;
"member of the Police Force" means any member of the Royal Papua New Guinea Constabulary;
"multiple electronic message" means a mail message including e-mail and instant messaging sent to 50 or more recipients;
"network" means the interconnection, whether earth bound (wired, cable), wireless, or both of two or more electronic systems or other data processing devices, or a group of such interconnected or related devices;
"network service" means a service for carrying of communications, by means of guided or unguided electromagnetic energy, supplied between distinct geographic points at least one of which is located in Papua New Guinea, but does not include services provided solely on the retail customer side of the network boundary;
"network service provider" means an ICT Service Provider that provides a network service;
"offence" has the same meaning as Section 3 of the Criminal Code Act (Chapter 262);
"online" means accessing the internet and remaining there;
"person" means a natural person or body corporate;
"pornography" means -
"possession" has the same meaning as "have in possession" under Section 1 of the Criminal Code Act (Chapter 262) and includes having under control in or on any website, whether for the use or benefit of the person in control whether or not another person has actual possession or custody of the thing or matter in question or whether or not the thing or matter in question is visible;
"premises" includes land, buildings, movable structures and any conveyance by land, water or air, or web hosting servers or websites;
"principal magistrate" means a magistrate duly empowered to preside in respect of committal proceedings or a Grade V Magistrate;
"private place" means a place other than a public place, including but not limited to a house, building, vessel, craft or vehicle;
"property" has the same meaning as in Section 1 of the Criminal Code Act (Chapter 262) and includes money;
"public place" means a place to which members of the public have access as a right, whether or not on payment of a fee and whether or not access to the place may be restricted at particular times or for particular purposes;
"remote forensic tool" means an investigative tool such as a software or a hardware installed on or applied with regard to an electronic system or device and used to perform tasks that include but are not limited to, keystroke logging or transmission of an Internet Protocol address;
"seize" includes -
"sensitive data" means any data or content whether in writing, images, audio, visual, audiovisual or in any other form -
"spam" means the transmission of harmful, fraudulent, misleading, illegal or otherwise unsolicited, electronic messages to a recipient without the express permission or approval of the recipient, or causing an electronic system or device to show such message or the involvement in falsified online user account registration or falsified domain name registration, for a commercial purpose;
"storage device" means any article or device from which information is capable of being reproduced, with or without the aid of any other article or device;
"thing" includes -
"this Act" includes any schedules, regulations, rules or other subsidiary legislation made under this Act;
"utilise" includes -

of a remote forensic tool.

PART II. - JURISDICTION

  1. APPLICATION.
(1) Unless stated to the contrary, the provisions of the Criminal Code Act (Chapter 262) relating to

apply to this Act.

(2) The provisions of this Act are in addition to and not in derogation of the Criminal Code Act (Chapter 262) or any other law relating to criminal matters, and where there are any inconsistencies between the provisions of this Act and the Criminal Code Act (Chapter 262) or any other law relating to criminal matters, the provisions of this Act shall apply.
  1. EFFECT OF CHANGES IN LAW.
(1) A person cannot be punished for doing or omitting to do an act unless the act or omission constituted an offence under this Act in force when the offence occurred.
(2) This Act does not have retrospective effect on past commissions or omissions of acts that constituted an offence under this Act.
  1. AGE OF CRIMINAL CULPABILITY.
(1) A child under the age of 10 years at the time of the act or omission that constitutes an offence under this Act is not criminally responsible for such act or omission.
(2) A child between the ages of 10 and 14 years is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission he had capacity to know that he ought not to do the act or make the omission.
(3) Where any of the offences in this Act are committed by a child between the ages of 10 and 18 years, the provisions of the Juvenile Justice Act 2014 shall apply.

PART III. - OFFENCES AND PENALTIES.

Division 1. - Offences Related to the Integrity of Data and Electronic System or Devices.

  1. UNAUTHORISED ACCESS OR HACKING.
(1) A person who, intentionally and without lawful excuse or justification, or in excess of a lawful excuse or justification, accesses or gains entry without authorisation, to the whole or any part of a protected or non-public electronic system or device, or data, is guilty of a misdemeanour.
(2) Where the offence in Subsection (1) results in damage or loss to the whole or any part of an electronic system or device, or data, the offender is guilty of a crime.
  1. ILLEGAL INTERCEPTION.
(1) A person who, intentionally and without lawful excuse or justification, or in excess of a lawful excuse or justification, intercepts by technical or other means -

is guilty of a crime.

Penalty:
(2) Where the offence under Subsection (1) is committed against State or Military transmissions, or transmissions of other sensitive data, the offender is guilty of a crime.
  1. DATA INTERFERENCE.

A person who, intentionally and without lawful excuse or justification, or in excess of a lawful excuse or justification or recklessly -

(a) damages or deteriorates data; or
(b) deletes data; or
(c) alters data; or
(d) renders data meaningless, useless or ineffective; or
(e) obstructs, interrupts or interferes with the lawful processing of data; or
(f) obstructs, interrupts or interferes with any person in their lawful use of data; or
(g) denies access to data to any person authorised to access it,

is guilty of a crime.

Penalty:

(b) In the case of a body corporate, a fine not exceeding K100,000.00.

  1. SYSTEM INTERFERENCE.
(1) A person, who intentionally and without lawful excuse or justification, or in excess of a lawful excuse or justification, or recklessly -

is guilty of a misdemeanour.

Penalty:

(b) In the case of a body corporate, a fine not exceeding K100,000.00.

(2) Where the offence is committed against an electronic system or device that is exclusively for the use or operation of critical infrastructure, or in the case where such electronic system or device is not exclusively for the use or operation of critical infrastructure, but is otherwise used in connection with the operation of critical infrastructure, and such conduct -

the offender is guilty of a crime.

Penalty:
  1. DATA ESPIONAGE.
(1) A person who, intentionally and without lawful excuse or justification, or in excess of a lawful excuse or justification, whether for his own use or for the use of another person, accesses or obtains protected data which is not meant for him, and which is protected against unauthorised access, is guilty of a crime.
(2) Where the offence under Subsection (1) is committed against State secrets or Military secrets, or sensitive data, the offender is guilty of a crime.

(b) In the case of a body corporate, a fine not exceeding K1,000,000.00.

  1. ILLEGALLY REMAINING.

A person who, intentionally and without lawful excuse or justification, or in excess of a lawful excuse or justification or recklessly, remains logged into or continues to use an electronic system or device, or part of an electronic system or device, without authorisation or after his authorised use of the electronic system or device has expired, is guilty of a misdemeanour.

Penalty:

Division 2. - Computer Related Offences.

  1. ELECTRONIC FRAUD.
(1) A person who, intentionally and without lawful excuse or justification, or in excess of a lawful excuse or justification -

for the purpose of deceiving or depriving another person of their property for his own gain or that of another person, is guilty of a crime.

Penalty:
(2) A person who, without lawful excuse or justification, or in excess of a lawful excuse or justification, conspires with another person to commit, or attempts to commit an offence under this section, is guilty of a crime.

(b) In the case of a body corporate, a fine not exceeding K500.000.00.

  1. ELECTRONIC FORGERY.
(1) A person who, intentionally and without lawful excuse or justification, or in excess of a lawful excuse or justification -

for the purpose of creating or generating inauthentic data that it may be considered or acted upon for lawful purposes as if it were authentic, regardless of whether the data is directly readable or intelligible, is guilty of a crime.

Penalty:
(2) A person who, intentionally and without lawful excuse or justification, or in excess of a lawful excuse or justification, conspires with another person to commit, or attempts to commit an offence under this section, is guilty of a crime.

(b) In the case of a body corporate, a fine not exceeding K500,000.00.

  1. ELECTRONIC GAMBLING OR LOTTERY BY A CHILD.
(1) A child who, intentionally and without lawful excuse or justification, or in excess of a lawful excuse or justification, uses an electronic system or device to participate in a lottery or any gaming activity, whether or not, by means of the internet, is guilty of a misdemeanour.
(2) A gaming operator, who knowingly or recklessly, and without lawful excuse or justification, or in excess of a lawful excuse or justification, makes available to a child, lottery or other gaming activity through an electronic system or device, is guilty of a crime.
(3) For the purposes of this section -
  1. IDENTITY THEFT.

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 -

(a) to access; or
(b) to manipulate; or
(c) to possess; or
(d) to use; or
(e) to transfer,

a means of identification of another person without the authorisation of that other person, is guilty of a crime.

Penalty:

(b) In the case of a body corporate, a fine not exceeding K100, 000.00.

  1. ILLEGAL DEVICES.
(1) A person who, intentionally and without lawful excuse or justification, or in excess of a lawful excuse or justification, designs, produces, sells, procures for use, imports, exports, distributes or otherwise makes available -

for the purpose of committing an offence defined by other provisions of Part III of this Act, is guilty of a crime.

Penalty:
(2) It is a defence to a charge under this section where the design, production, sale, procurement for use, import, distribution or otherwise making available, or possession of devices referred to in Subsection (1), is for authorised testing or protection of an electronic system or device, or for law enforcement purposes.
(3) Whether an illegal device referred to in Subsection (1) is for authorised testing, protection of an electronic system or device, or law enforcement purposes, is a question of fact.

Division 3. - Content Related Offences.

  1. PORNOGRAPHY.
(1) 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 -

is guilty of a crime.

Penalty:

(b) In the case of a body corporate, a fine not exceeding K100,000.00.

(2) It is a defence to a charge for an offence under Subsection (1)(b), (c) and (d) if the pornography was for a bona fide law enforcement purpose or for the benefit of the public.
(3) Whether the doing of an act referred to in Subsection (1) is for the benefit of the public, is a question of fact.
  1. CHILD PORNOGRAPHY.
(1) 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.
(2) 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 access child pornography, whether or not for the purpose of downloading or transmitting it either to himself or another person, or, for the purpose of giving effect to or facilitating the commission of any of the offences in Subsection (1), is guilty of a crime.
(3) It is a defence to a charge for an offence under this section if the child pornography was for a bona fide law enforcement purpose or for the benefit of the public.
(4) Whether the doing of an act referred to in this section is for the benefit of the public, is a question of fact.
(5) For the purposes of this section, if child pornography is stored for a bona fide law enforcement purpose, all traces, copies, or storage of such pornographic material shall be removed, deleted or otherwise destroyed once it is no longer lawfully required.
  1. CHILD ONLINE GROOMING.
(1) 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 befriend, invite, induce, persuade, or in any way procure, or offer to engage a child in -

is guilty of a crime.

Penalty:

(b) In the case of a body corporate, a fine not exceeding K500,000.00.

(2) Where the offence under Subsection (1) is committed in respect of a child under the age of 16 years, the offender is guilty of a crime.
(3) A person who knowingly receives any financial or other reward, favour, benefit, compensation, or any other gain from the commission of an offence under this section, is guilty of a crime.
  1. ANIMAL PORNOGRAPHY.

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 -

(a) produce; or
(b) offer or make available; or
(c) distribute or transmit; or
(d) procure or obtain for himself or for another person, access to, pornography of himself or of another person engaged in sexual activity with an animal or animals; or
(e) obtain access to animal pornography whether or not by downloading or transmitting it either to himself or another person, for the purpose of giving effect to, or facilitating the commission of any one or more of the offences in Paragraphs (b), (c) and (d) above,

is guilty of a crime.

Penalty:
  1. DEFAMATORY PUBLICATION.
(1) For the purposes of this Section -
(2) 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.
(3) Where the offence under Subsection (2) is committed with the knowledge that the published defamatory material is false, the offender is guilty of a crime.
(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 -

upon or for a person, any property or benefit of any kind, is guilty of a crime.

Penalty:
(5) It is a defence to a charge for an offence under this section that the defamatory material published -
(6) Whether or not the publication complained of is true, or was made for the benefit of the public, or constitutes fair comment, or was made in good faith, is a question of fact.
(7) Where the defence of good faith is raised under Subsection (5)(d), the burden of proof shifts to the party alleging the absence of good faith.
(8) 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 to the offender notwithstanding that the published defamatory material complained of was produced with the knowledge or consent of the person defamed.
(9) The provisions of Section 362E of the Criminal Code Act (Chapter 262), relating to protection of matters of public interest, apply to this section.
(10) For the purpose of Subsection (9), "public meeting" referred to in Section 362E of the Criminal Code Act (Chapter 262) includes online discussion forums whether or not they are featured on social networking sites.
  1. CYBER BULLYING.
(1) 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 whether or not it is connected to the internet (with or without the aid of electronic writings, images, audio, visual or audiovisual recordings, or the exchange of messages) to -

any communication or online discussion or posts with or regarding a child, directly or indirectly (with or without any exchange of messages or electronic writings, images, audio, visual or audiovisual recordings) with the child subject of the bullying for the purpose of -

(i) bullying, intimidating, threatening, demeaning, ridiculing or stalking, or causing emotional distress; or
(ii) supporting such repeated acts under Subparagraph (i),

in respect of that child, is guilty of a misdemeanour.

Penalty:
(2) Where the offence under Subsection (I) results in psychological or physical harm, the offender is guilty of a crime.

(iii) both Subparagraphs (i) and (ii); and

(b) In the case of an adult offender -
(3) Where the offence in Subsection (1) results in death, the offender is guilty of a crime.
  1. CYBER HARASSMENT.
(3) 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 whether or not it is connected to the internet (with or without the aid of electronic writings, images, audio, visual or audiovisual recordings, or the exchange of messages) to -

any communication or online discussion or posts regarding another person, directly or indirectly (with or without any exchange of messages or electronic writings, images, audio, visual or audiovisual recordings) with the person harassed, for the purpose of -

(i) coercing, intimidating, threatening, harassing, stalking, or causing emotional distress; or
(ii) supporting such repeated acts under Subparagraph (i),

in respect of that person, is guilty of a misdemeanour.

Penalty:
(4) Where the offence under Subsection (1) results in psychological harm or physical injury, the offender is guilty of a crime.

(ii) prohibition from accessing and using ICTs or electronic system or devices for the term of imprisonment imposed plus an additional two years; or

(iii) both Subparagraphs (i) and (ii); and
(b) In the case of an adult offender -

(5) Where the offence under Subsection (2) results in death, the offender is guilty of a crime.

Penalty:

(6) 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 whether or not it is connected to the internet (with or without the aid of electronic writings, images, audio, visual or audiovisual recordings) to -

(a) authorise, facilitate or enable; or
(b) write, post or effect; or
(c) entertain, encourage or participate in,

the posting of commentary, whether or not it is directed at anyone in particular, using or connoting profanity or obscenity, or language or imagery that is vulgar, or otherwise unacceptable or which grossly offends against accepted standards of public decency, to any person reading such post or commentary, is guilty of a crime.

Penalty:
  1. CYBER EXTORTION.
(1) 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 -

into an electronic system or device, software designed to restrict, disrupt or in any way hinder the operation of or access to an electronic system or device, for the purpose of procuring monetary or other benefit for himself or another person, is guilty of a crime.

Penalty:
(2) A person who, intentionally and without lawful excuse or justification, or in excess of a lawful excuse or justification, uploads, deploys, inputs or threatens to upload, deploy or input, into an electronic system or device, electronic writings, images, audio, visual or audiovisual recordings, for the purpose of -

is guilty of a crime.

Penalty:
(3) It is immaterial whether the person accused or threatened to be accused has committed the offence or act of which he is being accused or threatened to be accused.
  1. UNLAWFUL DISCLOSURE.
(1) 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 disclose any confidential or classified communication (whether content, data or electronic output) or sensitive data, is guilty of a crime.
(2) Where the offence is committed by a person with lawful authority, custody, access or control, in respect of such confidential or classified communication or sensitive data, the offender is guilty of a crime.
(3) It is a defence to a charge for an offence under this section to prove that it was for the benefit of the public that confidential or classified communication or sensitive data was disclosed.
(4) Whether the unlawful disclosure under this section is for the benefit of the public, is a question of fact.
  1. SPAM.

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 -

(a) to initiate the transmission of multiple electronic messages with the intent to deceive or mislead users; or
(b) which is password protected to relay or retransmit multiple electronic messages, with the intent to deceive or mislead users, or any ICT Service Provider, as to the origin of such messages; or
(c) to materially falsify header information in multiple electronic messages with the intent of initiating the transmission of such messages,

is guilty of an offence.

Penalty:

Division 4. - Other Offences.

  1. CYBER ATTACK.
(1) A person who, intentionally and without lawful excuse or justification, or in excess of a lawful excuse or justification, inputs or deploys malicious software into an electronic system or device, data, infrastructure, or program resident or transiting within an electronic system or device, for the purpose of altering or causing harm to, or, disrupting, degrading, destroying an electronic system or device, data, infrastructure, or program, is guilty of a crime.
(2) Where the offence under Subsection (1) is committed against a critical infrastructure, the offender is guilty of a crime.
  1. ONLINE COPYRIGHT INFRINGEMENT.

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, and knowingly and repeatedly -

(a) infringes; or
(b) authorises the infringement of; or
(c) facilitates or enables the infringement of,

a right protected under the Copyright and Neighbouring Rights Act 2000 or any other laws relating to copyright, is guilty of a crime.

Penalty:

(ii) a fine not exceeding K100,000.00; or

(iii) prohibition from accessing and using ICTs or electronic system or devices for the term of imprisonment imposed plus an additional two years; or
(iv) all or any of Subparagraphs (i), (ii) or (iii); and
(b) In the case of a body corporate, a fine not exceeding K1,000,000.00.

29 ONLINE TRADEMARK INFRINGEMENT.

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, and knowingly or repeatedly -

(a) sells; or
(b) exposes for sale,

goods or services to which a forgery of a registered trademark is falsely applied in contravention of the Trademarks Act (Chapter 385), or any other laws relating to trademarks, is guilty of a crime.

Penalty:
  1. PATENT AND INDUSTRIAL DESIGNS INFRINGEMENT.

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, and knowingly or repeatedly commits an act or omission which contravenes the Patents and Industrial Designs Act 2000 or any other law relating to patents and industrial designs, is guilty of a crime.

Penalty:

(iv) all or any of Subparagraphs (i), (ii) or (iii); and

(b) In the case of a body corporate, a fine not exceeding K1,000,000.00.
  1. UNLAWFUL ADVERTISING.

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 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:

PART IV. - PROCEDURE IN SEARCH, EVIDENCE, INVESTIGATION, ETC.

Division I. - Authorised Search and Seizure.

  1. SEARCH.
(1) Where a member of the Police Force believes that there are reasonable grounds for suspecting that there is in a private place, a data or thing that may provide evidence of the commission of an offence, he may, under a warrant issued under Subsection (2), enter the private place and -
(2) Where it appears to a Magistrate, by information on oath, that there are reasonable grounds for suspecting that there is, in a private place, a data or thing that may provide evidence of the commission of an offence, he may issue a warrant directing a member of the Police Force named in the warrant, or all members of the Police Force to search the private place and to seize any such data or thing and take it before a Magistrate to be dealt with according to law.
(3) A warrant under Subsection (2) must be executed by day unless, by the warrant, the Magistrate specifically authorises it to be executed by night.
(4) Any data or thing seized under Subsection (2) may be detained by a Magistrate, and when it is no longer required as evidence, it may be destroyed under an order of a Magistrate.
  1. SEARCH POWERS.

In addition to the powers under the Search Act (Chapter 341), where a member of the Police Force suspects, on reasonable grounds, that a thing may provide evidence of the commission of an offence, he may, in executing a warrant, exercise the following powers:

(a) operate the electronic system or device, or direct an occupant of the private place to operate the electronic system or device in order to determine whether it contains data or a thing that could be seized; or
(b) operate the electronic system or device, or direct an occupant of the private place to operate the electronic system or device to access data (including data stored on a separate storage device or data not held at the private place) or thing if the member of the Police Force believes, on reasonable grounds, that the data or thing might be data or thing that could be seized; or
(c) copy the data or thing that could be seized to a storage device and take the storage device from the place; or
(d) copy the data or thing that could be seized in documentary form and seize the produced documents; or
(e) move any electronic system or device, or thing, at the place subject of the search, to another place for examination in order to determine whether it contains data that could be seized if -
(f) do anything reasonably necessary to prevent loss, destruction or damage to anything connected with the offence; or
(g) use other members of the Police Force or other persons authorised under the warrant as reasonably necessary for the search.
  1. ASSISTANCE.

A member of the Police Force may, upon production of a search warrant obtained under Sections 32 and 33, require a person who is not a suspect of an offence but is in possession or control of an electronic system or device, data or thing that is reasonably required for the purposes of an investigation or proceeding, to enable and assist him, if required, to -

(a) access and use an electronic system or device, data or thing; or
(b) obtain and copy data; or
(c) use an electronic system or device, or thing to make copies; or
(d) obtain an output from an electronic system or device, or thing in a format that can be read.

Division 2. - Preservation of Evidence.

  1. PRODUCTION ORDERS.

Where specified data or a printout is reasonably required for the purposes of an investigation or proceedings, the Court may, on application by a member of the Police Force or the Public Prosecutor, as the case may be, order -

(a) a person in control of an electronic system or device, or thing to produce specified data or a printout of such data; or
(b) an ICT Service Provider to produce information about persons who subscribe to or use its services.
  1. EXPEDITED PRESERVATION.
(1) Where a member of the Police Force, has reasonable grounds to suspect that -

he may, by written notice, require a person in control of the data, electronic system or device, or thing to ensure that the data specified in the notice be preserved for a period of up to 14 days.

(2) Subject to Subsection (3), the Magistrate may, upon application by the member of the Police Force, authorise an extension for a further 14 days from the expiry of the initial 14 days.
(3) An application under Subsection (2) shall be made at anytime within the initial 14 days.
(4) A person who fails to comply with a request under Subsection (1) is guilty of an offence.
  1. PARTIAL DISCLOSURE.

Where the Court is satisfied, on application by a member of the Police Force or the Public Prosecutor, as the case may be, that specified data stored in an electronic system or device, or thing is required for the purpose of an investigation or proceeding, the Court may order such person to disclose sufficient traffic data about a specified communication to identify -

(a) the ICT Service Providers involved; and
(b) the path through which the communication was transmitted.
  1. RESTRAINING ORDERS.

Where the Court, on application by a member of the Police Force or the Public Prosecutor, as the case may be, is satisfied that there are sufficient grounds to believe that an electronic system or device, data or thing reasonably required for the purposes of an investigation or proceeding, is likely to be removed, destroyed, deleted or otherwise tampered with or dealt with, it may make an order restraining or preventing such removal, destruction, deletion or tampering or dealing with such electronic system or device, data or thing.

Division 3. - Powers of Investigation.

  1. AUTHORISED INTERCEPTION.

Where, on application by a member of the Police Force or the Public Prosecutor, as the case may be, the Court is satisfied upon sworn evidence that there are sufficient grounds to suspect that data or communication is reasonably required for the purposes of an investigation or proceeding, the Court shall -

(a) order an ICT Service Provider whose service is available in the country to collect or record through application of technical or other means, to permit or assist a member of the Police Force with the collection or recording of data or communication associated with specified communications transmitted by means of an electronic system or device; or
(b) authorise a member of the Police Force to collect or record that data through application of technical or other means.
  1. COLLECTION OF TRAFFIC DATA.

Where, on application by a member of the Police Force or the Public Prosecutor, as the case may be, the Court is satisfied upon sworn evidence that traffic data associated with a specified communication is reasonably required for the purposes of an investigation or proceeding, the Court may order a person in control of such data to -

(a) collect or record traffic data associated with a specified communication during a specified period; or
(b) enable and assist a member of the Police Force to collect or record that data.
  1. FORENSIC TOOLS.
(1) In an investigation of an offence under this Act, if relevant evidence cannot be collected by applying other instruments under this Part, then the Court, on application by a member of the Police Force or the Public Prosecutor, as the case may be, on being satisfied upon sworn evidence that such evidence is reasonably required for the purposes of an investigation or proceeding, authorise a member of the Police Force to -

only for the specific task required for the investigation.

(2) The authorisation to install the software or hardware may include remotely accessing the suspect's electronic system or device.
(3) The application under Subsection (1) shall contain the following information:
(4) An order made under Subsection (1) shall include a requirement that any modifications to the electronic system or device of the suspect are limited to those relevant to the investigation and that any changes if possible can be undone at the end of the investigation.
(5) During the investigation it is necessary to record -
(6) Information obtained by the use of such software or hardware is to be protected against any unauthorised modification, deletion or access.
(7) The duration of an order made under Subsection (1) shall not exceed six months.
(8) Where an order under Subsection (1) is discharged, the software or hardware installed shall immediately be removed.
(9) The Court may revoke an order under Subsection (1) where it is satisfied, on reasonable grounds, that in discharging the order, a member of the Police Force acted in excess of its terms.
(10) Where the installation process requires physical access to a private place, the requirements of Sections 32 and 33 shall be complied with.
(11) In an application under Subsection (1), the Court may order an ICT Service Provider to assist with the installation process.

Division 4. - Evidence and Admissibility.

  1. JUDICIAL NOTICE.
(1) The Court shall take judicial notice of electronic seals, electronic signatures or electronic certificates, or any other forms of electronic verification.
(2) Where relevant, Part II of the Evidence Act (Chapter 48) relating to Judicial Notice applies to this Act.
  1. ELECTRONIC EVIDENCE.
(1) In the trial of an offence under this Act, the fact that evidence has been generated or stored electronically or has resulted from an electronic system or device does not of itself prevent that evidence from being admissible in Court.
(2) Evidence required for the purposes of this Act shall be governed by the provisions of the Evidence Act (Chapter 48).

PART V. - ICT SERVICE PROVIDERS.

  1. CRIMINAL LIABILITY OF ICT SERVICE PROVIDERS.
(1) An ICT Service Provider which -

is guilty of a crime.

Penalty:
  1. DISCLOSURE OF DETAILS OF AN INVESTIGATION.

An ICT Service Provider who is in receipt or has knowledge of a Court Order relating to an investigation or proceeding which explicitly stipulates that confidentiality is to be maintained or such obligation is required by law, intentionally and without lawful excuse or justification or in excess of a lawful excuse or justification, or recklessly discloses -

(a) the fact that an order has been made; or
(b) anything done or required to be done under the order; or
(c) any data collected or recorded pursuant to that order,

is guilty of a crime.

Penalty:

PART VI. - INTERNATIONAL CO-OPERATION.

  1. MUTUAL ASSISTANCE.

For the purposes of facilitating international co-operation the provisions of the Mutual Assistance in Criminal Matters Act 2005 applies.

  1. EXTRADITION.

For the purposes of facilitating matters relating to extradition, the provisions of the Extradition Act 2005 applies.

PART VII. - CERTAIN INDICTABLE OFFENCES, REGULATIONS, ETC.

  1. INDICTABLE OFFENCES TRIABLE SUMMARILY.

Where a person is charged before a District Court constituted by a Principal Magistrate with an offence specified in Schedule 2, the Court may deal with the charge summarily according to the procedure set out in Section 421 of the Criminal Code Act (Chapter 262).

  1. RULES, ETC.

Rules of any form of subordinate enactment necessary for the regulating of practice and procedure during an investigation or before a Court may be made prescribing all matters that are necessary or convenient to be prescribed for carrying out and giving effect to this Act, and in particular, for prescribing rules in relation to the provisions under Part IV.

  1. REGULATIONS.

The Head of State, acting on advice, may make regulations, not inconsistent with this Act, prescribing all matters that, by this Act, are required or permitted to be prescribed, or that are necessary or convenient to be prescribed for carrying out or giving effect to this Act.

SCHEDULE 1.

DESCRIPTION OF ICT SERVICE PROVIDERS.

Sec.1

ICT SERVICE PROVIDERS
DESCRIPTION
Telecommunications Service Provider
means an ICT Service Provider that provides mobile or fixed line telephony services.
Internet Service Provider
means an ICT Service Provider that provides a service to connect users to the internet and to allow users to remain online by means which include, but are not limited to existing fixed lines, cable TV lines, fiber optic cables or by satellite.
Access Provider
means an ICT Service Provider providing an electronic communication transmission service by transmitting information provided by or to a user of the service in a communication network or providing access to a communication network.
Caching Provider
means an ICT Service Provider providing a dedicated network server or service acting as a server that saves Web pages or other internet content locally by placing previously requested information in temporary storage, or cache, a cache server both speeds up access to data and reduces demand on an enterprise's bandwidth.
Hyperlink Provider
means an ICT Service Provider providing a link from a hypertext document to another location.
Web Hosting Provider
means an ICT Service Provider providing an applications service whether shared, dedicated or virtual private server hosting, providing hosting services, which includes but is not limited to hosting services such as hosting files, images, games, webmail or similar content.
Website Master or Administrator
means a person responsible for maintaining one or many websites, also referred to as web architect, web developer, site author, website co-ordinator or website publisher.

SCHEDULE 2.

INDICTIBLE OFFENCES TRIABLE SUMMARILY.

CYBERCRIME CODE SECTIONS.
BRIEF DESCRIPTION OF OFFENCE.
6(1)
Unauthorised Access or Hacking.
8
Data Interference.
9(1)
Systems Interference.
11
Illegally Remaining.
14(1)
Electronic Gambling or Lottery by a Child.
15
Identity Theft.
21(2)
Defamatory Publication.
22(1), (2)
Cyber Bullying.
23(1), (2)
Cyber Harassment.
25(1)
Unlawful Disclosure.
26
Spam.
31
Unlawful Advertising.

I hereby certify that the above is a fair print of the Cybercrime Code Act 2016 which has been made by the National Parliament.

Acting Clerk of the National Parliament.

13 DEC 2016

1 hereby certify that the Cybercrime Code Act 2016 was made by the National Parliament on 11 August 2016 by an absolute majority as required by the Constitution.

Acting Speaker of the National Parliament

13 DEC 2016.

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