Key Provisions of Cybercrime and Computer Related Crimes Act 2017:
This week I conclude on Botswana’s Cybercrime and Computer Related Crimes Act 2017. I wish to look at a few other provisions that I think will interest the reader and these are everyday issues that we experience or hear about.
These include cyber extortion, cyber fraud, cyber harassment, cyber stalking, offensive electronic communication and revenge pornography, amongst others. Most of these terms are not defined in the Act but from the proscriptions we can see what they involve. Regarding revenge pornography, (Section 20), it is a crime to use a computer or a computer system (including your phone) to disclose or publish a private sexual photograph or film without the consent the person appearing in it, with the intention of causing that person distress. The punishment for this is P40 000 fine or a maximum 2 year jail term or both. A similar punishment awaits a person found guilty of using a computer or computer system for racist or ethnic remarks. This can be found in Sections 22 and 23 of the Act.
I am still shocked that no Member of Parliament expressed concern about these high penalties. Crimes have to be punished but in terms of international law there has to be proportionality. A balancing act needs not only be performed by judicial officers but also members of parliament when they enact laws. But even stiffer penalties can be found in Section 19 (2) dealing with pornographic or obscene material relating to children. To make it simple, it is an offence to publish child pornography or obscene material relating to children using a computer or computer system for purposes of that. To avoid details, I would say it is an offence to involve yourself with child pornography whether as a recipient or as a producer or conduit. The punishment for that is P 100 000 or a maximum 5 year jail term or to both.
The issue of indecent or pornographic material relating to children is normally two pronged. On the one hand the law normally criminalises receiving or production of images of children engaged in sexual activity. On the other hand it also criminalises exposure of children to pornographic material normally watched or viewed by older people for their own prurient interests. I notice that the Botswana law here does not touch on the second aspect and perhaps advisedly. The first one seems to have global consensus but the second one dealing with adult interests opens a Pandora box. The US experience delineates this well. If the clause is not well tailored, it might be deemed too broad to interfere with the rights of adults. The Americans had enacted the Communication Decency Act 1996 to penalise communication of ‘indecent and patently offensive’ materials with persons under 18. In Reno v American Civil Liberties Union (521 US 844 (1997), the Supreme Court ruled that this law was too broad as it penalized the communication without specifically explaining what those terms meant. There was no reliable process by which senders of messages on the net would determine the age of the recipients. The court noted that filtering software could be used to allow access for parents whilst blocking access for children. In other words, a less intrusive measure was required.
Congress tried to correct this by enacting a more measured law, the Child Online Protection Act (COPA). It applied only to material on the World Wide Web and communicated for commercial purposes. This law concerned itself only with communication of material harmful to minors and defined mainly in terms of obscenity. It applied an objective test, that the average person, applying contemporary community standards would find it of prurient interest with respect to minors, patently offensive with regard to them in its depiction of sexual activity, and without serious literary or other value. However it too was challenged in the courts.
The Court of Appeals for the Third Circuit held that COPA’s reliance on community standards in definition of material harmful to children rendered it incompatible with the First Amendment (see Reno v ACLU 1997). When the Supreme Court allowed the government appeal and referred the matter back to the Circuit Court, the judges were divided on the issue of standards. Three supported the yardstick of community standards whilst two supported national standards. Those who dissented argued that the application of community standards would naturally lead to self-censorship as senders would try to avoid communication of messages likely to be regarded as harmful to minors or obscene in conservative communities.
In further litigation (Ashcroft v ACLU 159 L Ed 2d 690 (2004), the Circuit Court of Appeals ruled once more that COPA was likely to be held invalid, now on the basis that the government had not demonstrated that the measure taken was less restrictive intrusion on speech in trying to prevent minors from accessing harmful communications on the Internet. It supported the injunction to stop enforcement of the legislation as handed down by the District Court. Once more the bench was split, 5-4. The majority reasoned that usage of blocking and filtering software was an alternative to criminal sanctions. The court objected to parents having to identify themselves by producing a credit card or digital certificate of age in order to access sexually explicit material under COPA. The dissenting justices noted that filtering software would not only be expensive to buy but would require most parents to be taught how to use it. Government was thus entitled to use a cheaper, realistic and more reasonable to use criminal law. These are the challenges of regulating content online.
Section 14 deals with cyber extortion, though it is not defined and it has a penalty of P 20 000 or a maximum 10 year jail term or to both. This is yet another clause where the sanctions imposed need to be re-examined in accordance with the principle of proportionality. Section 15 deals with cyber fraud. A description of this term can be found in the proscription and carries a maximum of P100 000 or a term of jail not more than years or both. Note the internal disparities between jail term and fine amount and contrast with section 15. What informs these? They seem arbitrary to me. Section 16 deals with cyber harassment for which there is a P 10 000 penalty or a maximum 6 months imprisonment (my emphasis). Again I don’t know what informs this.
Finally, on the issue of jurisdiction, according to Section 3, the courts of Botswana shall have jurisdiction where an act or an omission constituting an offence under this Act has been committed (a), In the territory of Botswana, (b) by a national of Botswana outside the territory of Botswana, if the person’s conduct would also constitute an offence under the law of the country where the offence was committed and if the person has not been prosecuted for the offence in that country, (c) on a ship or aircraft registered in Botswana, (d) in part in Botswana or (e) outside the territory of Botswana and where any result of the offence has effect in Botswana.
Sub-section (b) is an important clause since in other jurisdictions the courts will not entertain any application if prosecution is against public policy.The Botswana Parliament was thus anticipating such as scenario. Sub-section (e) raises an important issue of private international law. The common law practice in comparative international law is that publication takes place where the web page or material is downloaded rather than where it is uploaded. The Cybercrime Act also provides for extradition as per the Extradition Act.
I have not covered all aspects of this law but this should suffice to give the reader a good overview. My interest was to see how this compares with similar laws in other countries. At least from the issues that the law deals with there is a lot of similarity. But this law will need to be revised again. Should it be challenged at the High Court I foresee it being badly exposed, for some of the issues I have flagged up and others that I did not owing to space constraints. This is a very technical and ever-evolving area of law where advice of experts is required.
Dr Letshwiti B. Tutwane