Re Section 21(2) of the Cybercrime Code Act 2016 [2024] PGSC 77; SC2608 (2 August 2024)

SC2608

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REF NO 1 OF 2024

REFERENCE BY THE NATIONAL COURT
PURSUANT TO CONSTITUTION, SECTION 18(2)

RE SECTION 21(2) OF THE CYBERCRIME CODE ACT 2016

Waigani: Salika CJ, Gavara-Nanu J,
Cannings J, David J, Hartshorn J
2024: 30^th July, 2^nd August

CONSTITUTIONAL LAW – whether s 21(2) Cybercrime Code Act 2016 is a law that regulates or restricts the right to freedom of expression and publication in Constitution s 46 – whether s 21(2) Cybercrime Code Act complies with requirements of s 38 of the Constitution – whether s 21(2) Cybercrime Code Act is invalid.

Three questions of constitutional interpretation and application were referred to the Supreme Court by the National Court under s 18(2) of the Constitution during the trial of an accused charged with criminal defamation under s 21(2) of the Cybercrime Code Act 2016. The questions were: (1) Does s 21(2) of the Cybercrime Code Act regulate or restrict the right of freedom of expression and publication under s 46 of the Constitution? (2) If yes to question 1, does s 21(2) of the Cybercrime Code Act comply with s 38 of the Constitution? (3) Is s 21(2) of the Cybercrime Code Act invalid for being inconsistent with s 46 of the Constitution?

Held:

(1) Yes, s 21(2) of the Cybercrime Code Act restricts the exercise of the right to freedom of expression and publication in s 46 of the Constitution.

(2) Yes, s 21(2) of the Cybercrime Code Act complies with the three requirements of s 38 of the Constitution in that: (a) it has been made and certified in accordance with s 38(2); (b) it restricts the exercise of the right to freedom and expression and publication that is “necessary” for the purpose of giving effect to the public interest in public safety, public order and public welfare; and (c) it is a law that is reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind.

(3) No, s 21(2) of the Cybercrime Code Act is not invalid as, although it restricts the exercise of the right to freedom and expression and publication in s 46 of the Constitution, it is a law that complies with s38 of the Constitution and the restriction it imposes is permissible under s46(1)(c) of the Constitution.

Cases Cited
Application by Hon Bill Skate MP (2001) SC678
SC Ref No 1 of 1993 Reference by the Principal Legal Adviser re Section 365 of the Income Tax Act (1995) SC482
The State v Kila Aoneka Wari (2024) N10706
The State v NTN Pty Ltd [1992] PNGLR 1

Counsel
E Geita, for the First Intervener, Hon Pila Niningi MP, the Attorney-General
D Kuvi, for the Second Intervener, Raphael Luman, the acting Public Prosecutor
T Ilaisa, for the Third Intervener, Leslie Mamu, the Public Solicitor
S Javati, for the Fourth intervener, Kila Aoneka Wari, the accused in CR (FC) 8 of 2023

2^nd August 2024

1. BY THE COURT: Three questions of constitutional interpretation and application have been referred to the Supreme Court by the National Court under s 18(2) of the Constitution during the trial of an accused, Kila Aoneka Wari, charged with criminal defamation under s 21(2) of the Cybercrime Code Act 2016.

2. The questions are:

(1) Does s 21(2) of the Cybercrime Code Act regulate or restrict the right of freedom of expression and publication under s 46 of the Constitution?

(2) If yes to question 1, does s 21(2) of the Cybercrime Code Act comply with s 38 of the Constitution?

(3) Is s 21(2) of the Cybercrime Code Act invalid for being inconsistent with s 46 of the Constitution?

3. The questions are properly before the Supreme Court. We agree with the trial judge, Justice Berrigan, who referred the questions, that determination of the questions is necessary for the resolution of the trial in CR (FC) 8 of 2023, The State v Kila Aoneka Wari, that they are not hypothetical or trivial and that the verdict in the trial, which is reserved, cannot be given until these important questions are answered (The State v Kila Aoneka Wari (2024) N10706).

4. The accused, Kila Aoneka Wari, is the fourth intervener in the proceedings. Others are the Attorney-General (first intervener), the acting Public Prosecutor (second intervener) and the Public Solicitor (third intervener).

5. The first, second and third interveners agree that the principal question, number 3, should be answered in the negative: that s 21(2) of the Cybercrime Code Act is not invalid for being inconsistent with s 46 of the Constitution.

6. Only the fourth intervener argues that question 3 should be answered in the affirmative: that s 21(2) of the Cybercrime Code Act is invalid for being inconsistent with s 46 of the Constitution. The motivation for making that argument is clear as, if we rule that s 21(2) of the Cybercrime Code Act is invalid, it would appear to provide the accused with a complete defence to the charge.

7. The questions centre on the provision of the Cybercrime Code Act that creates the offence of criminal defamation, s 21(2), and the provision of the Constitution, s 46, that confers on all persons in Papua New Guinea, in the bundle of enforceable human rights enshrined by Division III.3 (basic rights), the qualified right to freedom of expression and publication.

8. Section s 21 of the Cybercrime Code Act states:

(1) For the purposes of this Section -

"publication" means using an electronic system or device to make publicly available defamatory material to persons other than the defamed person and includes electronic writings, images, audio, visual or audiovisual recordings;

"defamatory material" means an imputation, whether directly expressed or by implication, insinuation, innuendo or irony, that concerns a person or a member of his family, whether living or dead, with the intention of -

(i) injuring the reputation of that person; or

(ii) injuring the profession or trade of that person; or

(iii) inducing other people to shun, avoid, ridicule or despise that person.

(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.

Penalty:

(a) In the case of a natural person, a fine not exceeding K25,000.00 or a term of imprisonment not exceeding 15 years, or both; and

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

(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.

Penalty:

(a) In the case of a natural person, a fine not exceeding K50,000.00 or imprisonment for a term not exceeding 25 years, or both; and

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

(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 -

(a) extorting from that other person or any other person; or

(b) inducing a person to -

(i) give or confer; or

(ii) procure or to attempt to procure,

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

Penalty:

(a) In the case of a natural person, a fine not exceeding K100,000.00 or imprisonment for a term not exceeding 25 years, or both; and

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

(5) It is a defence to a charge for an offence under this section that the defamatory material published:

(a) was true; or

(b) was for the benefit of the public; or

(c) constituted a fair comment; or

(d) was made in good faith.

(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.

9. Section 46 of the Constitution states:

(1) Every person has the right to freedom of expression and publication, except to the extent that the exercise of that right is regulated or restricted by a law—

(a) that imposes reasonable restrictions on public office-holders; or

(b) that imposes restrictions on non-citizens; or

(c) that complies with Section 38 (general qualifications on qualified rights).

(2) In Subsection (1), "freedom of expression and publication" includes—

(a) freedom to hold opinions, to receive ideas and information and to communicate ideas and information, whether to the public generally or to a person or class of persons; and

(b) freedom of the press and other mass communications media

(3) Notwithstanding anything in this section, an Act of the Parliament may make reasonable provision for securing reasonable access to mass communications media for interested persons and associations—

(a) for the communication of ideas and information; and

(b) to allow rebuttal of false or misleading statements concerning their acts, ideas or beliefs,

and generally for enabling and encouraging freedom of expression.

QUESTION 1: DOES SECTION 21(2) OF THE CYBERCRIME CODE ACT REGULATE OR RESTRICT THE RIGHT OF FREEDOM OF EXPRESSION AND PUBLICATION UNDER SECTION 46 OF THE CONSTITUTION?

10. The right conferred by s 46(1) of the Constitution is the right to freedom of expression and publication. This includes by virtue of s 46(2) freedom to hold opinions, to receive ideas and information and to communicate ideas and information, whether to the public generally or to a person or class of persons and freedom of the press and other mass communications media. The exercise of those rights can be regulated or restricted, but not prohibited, if done under a law that falls within one of s 46(1)(a), (b) or (c), that is:

(a) that imposes reasonable restrictions on public office-holders; or

(b) that imposes restrictions on non-citizens; or

(c) that complies with Section 38 (general qualifications on qualified rights).

11. There is a sharp distinction between a law that regulates or restricts the exercise of a right and a law that prohibits the exercise of the right (The State v NTN Pty Ltd [1992] PNGLR 1).

12. The fourth intervener contends that s 21(2) of the Cybercrime Code Act prohibits the exercise of the right to freedom of expression and publication. However, we see no merit in that contention. Section 21(2) does not prohibit the exercise of the right to hold opinions, to receive ideas and information and to communicate ideas and information. It only restricts the exercise of the right by making it a criminal offence to publish using an electronic system or device defamatory material concerning another person that is not protected by one of the defences in s 21(5).

13. Section 21(5) provides that it is a defence to a charge of a s 21(2) offence if the defamatory material published:

(a) was true; or

(b) was for the benefit of the public; or

(c) constituted a fair comment; or

(d) was made in good faith.

14. It is clear in our view that s 21(2) of the Cybercrime Code Act does regulate or restrict, but does not prohibit, the exercise of the right to freedom of expression and publication in s 46(1) of the Constitution. The answer to question 1 is yes.

QUESTION 2: IF YES TO QUESTION 1, DOES SECTION 21(2) OF THE CYBERCRIME CODE ACT COMPLY WITH SECTION 38 OF THE CONSTITUTION?

15. We have answered question 1 yes, s 21(2) of the Cybercrime Code Act does regulate or restrict the exercise of the right to freedom of expression and publication. The question then arises is whether, in terms of s 46(1)(c) of the Constitution, the law regulating or restricting that right – the Cybercrime Code Act – complies with s 38 of the Constitution.

16. Section 38 states:

(1) For the purposes of this Subdivision, a law that complies with the requirements of this section is a law that is made and certified in accordance with Subsection (2), and that—

(a) regulates or restricts the exercise of a right or freedom referred to in this Subdivision to the extent that the regulation or restriction is necessary—

(i) taking account of the National Goals and Directive Principles and the Basic Social Obligations, for the purpose of giving effect to the public interest in—

(A) defence; or

(B) public safety; or

(C) public order; or

(D) public welfare; or

(E) public health (including animal and plant health); or

(F) the protection of children and persons under disability (whether legal or practical); or

(G) the development of under-privileged or less advanced groups or areas; or

(ii) in order to protect the exercise of the rights and freedoms of others; or

(b) makes reasonable provision for cases where the exercise of one such right may conflict with the exercise of another,

to the extent that the law is reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind.

(2) For the purposes of Subsection (1), a law must—

(a) be expressed to be a law that is made for that purpose; and

(b) specify the right or freedom that it regulates or restricts; and

(c) be made, and certified by the Speaker in his certificate under Section 110 (certification as to making of laws) to have been made, by an absolute majority.

(3) The burden of showing that a law is a law that complies with the requirements of Subsection (1) is on the party relying on its validity.

17. There are a number of cases in which the Supreme Court has been required to assess whether a law complies with s 38.

18. In The State v NTN Pty Ltd [1992] PNGLR 1 the Court found that the Television (Prohibition and Control) Act 1986, which prohibited television broadcasting in PNG until 31 January 1988, had to, but failed to comply with s 38.

19. In Application by Hon Bill Skate MP (2001) SC678 the Court found that amendments in 2001 to the National Capital District Commission Act 1990, which abolished the ex officio membership of the Commission of all members of Parliament including the applicant, Mr Skate, had to, but failed to comply with s 38.

20. In SC Ref No 1 of 1993 Reference by the Principal Legal Adviser re Section 365 of the Income Tax Act (1995) SC482 the Court found that s 365 of the Income Tax Act 1959, which authorised the Chief Collector of Taxes or authorised officers to have full and free access to all buildings, places, books documents and other papers for the purposes of the Act and seize, retain and remove or copy such books, documents or papers, did not have to comply with s 38; and this conclusion was driven by the wording of s 44 of the Constitution, which confers the right on all persons in PNG to freedom from arbitrary search and entry.

21. It is apparent from those cases that for a law to comply with s 38, it must satisfy three requirements arising from s 38(1).

22. First, the law must be made and certified in accordance with s 38(2).

23. Secondly, the law must:

(a) regulate or restrict the exercise of a right or freedom, only to the extent that the regulation or restriction is “necessary”—

“(i) taking account of the National Goals and Directive Principles and the Basic Social Obligations, for the purpose of giving effect to the public interest in—

(A) defence; or

(B) public safety; or

(C) public order; or

(D) public welfare; or

(E) public health (including animal and plant health); or

(F) the protection of children and person under disability (whether legal or practical); or

(G) the development of under-privileged or less advanced groups or areas; or

(ii) in order to protect the exercise of the rights and freedoms of others”; or

(b) make “reasonable provision for cases where the exercise of one such right may conflict with the exercise of another”.

24. Thirdly, the regulation or restriction of the exercise of rights or freedoms (s 38(1)(a)) or the provision for cases where the exercise of one right may conflict with the exercise of another right (s 38(1)(b)) must only be to the extent that is “reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind”.

25. Section 38(3) of the Constitution provides that “the burden of showing that a law is a law that complies with the requirements of Subsection (1) is on the party relying on its validity”, which means, in the present case, the first, second and third interveners.

The first requirement: s 38(2)

26. Section 38(2) requires that a law:

(a) be expressed to be a law that is made for a purpose prescribed by s 38(1)(a) or (b); and
(b) specify the right or freedom that it regulates or restricts; and

(c) be made, and certified by the Speaker in his certificate under s 110 to have been made, by an absolute majority.

27. The matters in s 38(2)(a) and (b) are addressed in s 1(2) of the Cybercrime Code Act, which states:

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 —

(a) the right to freedom from arbitrary search and entry conferred by Section 44; and

(b) the right to freedom of expression conferred by Section 46; and

(c) the right to privacy conferred by Section 49; and

(d) the right to freedom of information conferred by Section 51; and

(e) the right to freedom of movement conferred by Section 52; and

(f) the right to protection from unjust deprivation of property conferred by Section 53,

of the Constitution, ... 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.

28. We consider that s 1(2) is an adequate statement that the purpose of the regulation or restriction of the rights to freedom of expression and publication under s 46 of the Constitution is giving effect to the public interest in public safety, public order and public welfare, which are authorised purposes under s 38(1)(a)(i)(B), (C) and (D) of the Constitution. Section 1(2) also adequately specifies the rights and freedoms that the Act is regulating or restricting, including the rights and freedom in s 46(1) of the Constitution. The Cybercrime Code Act therefore complies with s 38(2)(a) and (b) of the Constitution.

29. As for s 38(2)(c) of the Constitution we were provided at the hearing of the reference with a copy of the Cybercrime Code Act containing a certificate under s 110 of the Constitution by the Acting Speaker of the National Parliament. The certificate demonstrates that the Act was made by an absolute majority of the members of the National Parliament on 11 August 2016. An “absolute majority” means, according to its definition in schedule 1.2(1) of the Constitution, “affirmative votes equal to more than one half of the total number of seats in the Parliament”. We note that the certificate does not appear to have been “under the National Seal” as required by s 110(1) of the Constitution but conclude that it is nonetheless a certificate under s 110 that certifies that the Cybercrime Code Act was made by an absolute majority. Therefore the requirements of s 38(2)(c) of the Constitution have been met.

30. This means that the first requirement of s 38(1) has been met.

The second requirement: regulating or restricting rights or freedoms that is necessary (s 38(1)(a)) or making reasonable provision for cases where the exercise of one right may conflict with the exercise of another (s 38(1)(b))

31. Under the second requirement a law must fall within either s 38(1)(a) or s 38(1)(b).

32. We consider that s 21(2) of the Cybercrime Code Act falls within 38(1)(a). It imposes necessary restrictions on the exercise of the right to freedom of expression and publication.

33. We are cognisant of the caution called for by Kapi DCJ in The State v NTN Pty Ltd [1992] PNGLR 1:

The word "necessary" implies that fundamental rights should not be regulated or restricted if there is another way of effectively protecting the public interest. This is consistent with the spirit of the Constitution that the freedom should be enjoyed with the least amount of restriction. See s 32(1) of the Constitution. This is also apparent from the spirit of s 38 of the Constitution, in that rigid requirements are demands for laws which either "regulate" or "restrict" a fundamental right. It is therefore proper to inquire whether there is an alternative way of protecting the public interest without unnecessarily restricting the enjoyment of a fundamental right.

34. We appreciate, as highlighted by the fourth intervener, that civil remedies are available under the Defamation Act 1962 for persons who are the subject of defamatory material published by use of an electronic system or device. However, that does not mean it is not necessary to criminalise publication of such material in the manner that s 21(2) of the Cybercrime Code Act does. The direct victims of numerous crimes in PNG have civil remedies available to them but as Berrigan J pointed out in her judgment, referring these questions to the Supreme Court, there are costs involved in investigating the wrongful conduct and prosecuting a case and there are risks of costs to be considered.

35. It is an inherent State function to provide a criminal justice system that has the facilities and resources to investigate and prosecute wrongful conduct that has a direct victim as criminal conduct. We consider that, taking account of the National Goals and Directive Principles and the Basic Social Obligations (especially (f): “to respect the rights and freedoms of others”), for the purpose of giving effect to the public interest in public safety, public order and public welfare, it is necessary to have a criminal law such as s 21(2) of the Cybercrime Code Act in operation. It provides a deterrent to the expression and publication of untruthful, scurrilous, hurtful or inciteful material, particularly on social media, which is by its nature a danger to public safety, order and welfare.

36. Section 21(2) of the Cybercrime Code Act meets the second requirement of s 38(1) of the Constitution.

The third requirement: regulating or restricting rights only to the extent that is reasonably justifiable

37. The question at this point is whether s 21(2) of the Cybercrime Code Act regulates or restricts the exercise of the right to freedom of expression to the extent that is “reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind”.

38. In determining that question the Court is guided by s 39 of the Constitution, which states:

(1) The question, whether a law or act is reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind, is to be determined in the light of the circumstances obtaining at the time when the decision on the question is made.

(2) A law shall not be declared not to be reasonably justifiable in a society having a proper regard for the rights and dignity of mankind except by the Supreme Court or the National Court, or any other court prescribed for the purpose by or under an Act of the Parliament, and unless the court is satisfied that the law was never so justifiable such a declaration operates as a repeal of the law as at the date of the declaration.

(3) For the purposes of determining whether or not any law, matter or thing is reasonably justified in a democratic society that has a proper regard for the rights and dignity of mankind, a court may have regard to—

(a) the provisions of this Constitution generally, and especially the National Goals and Directive Principles and the Basic Social Obligations; and

(b) the Charter of the United Nations; and

(c) the Universal Declaration of Human Rights and any other declaration, recommendation or decision of the General Assembly of the United Nations concerning human rights and fundamental freedoms; and

(d) the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Protocols thereto, and any other international conventions, agreements or declarations concerning human rights and fundamental freedoms; and

(e) judgements, reports and opinions of the International Court of Justice, the European Commission of Human Rights, the European Court of Human Rights and other international courts and tribunals dealing with human rights and fundamental freedoms; and

(f) previous laws, practices and judicial decisions and opinions in the country; and

(g) laws, practices and judicial decisions and opinions in other countries; and

(h) the Final Report of the pre-Independence Constitutional Planning Committee dated 13 August 1974 and presented to the pre-Independence House of Assembly on 16 August 1974, as affected by decisions of that House on the report and by decisions of the Constituent Assembly on the draft of this Constitution; and

(i) declarations by the International Commission of Jurists and other similar organizations; and

(j) any other material that the court considers relevant.

39. Section 39(1) requires that we determine the issue of reasonable justifiability in the light of the circumstances of Papua New Guinea in 2024. We take judicial notice of the increasing use of social media as a means of expressing and publishing opinions and comments on a range of issues and the worrying misuse of some platforms to express views that are false or excessively speculative and damaging to the reputation of many persons including those holding leadership positions and those persons involved in private or family disputes with the authors of noxious comments posted on social media platforms.

40. We acknowledge the range of considerations set out in Berrigan J’s judgment referring this matter to the Supreme Court, which are relevant to determination of the question of whether s 21(2) of the Cybercrime Code Act is reasonably justifiable. There are those that tend to support a finding that s 21(2) of the Cybercrime Code Act is not reasonably justifiable, which are set out at paragraph 33 of her Honour’s judgment:

I consider therefore that it may also be relevant to the issue to consider on one hand: the broad nature of the offence, including the elements of intention, the definition of defamatory material, and that it does not appear that actual damage is required; the very severe penalties applying; the impact and in some cases significant financial cost of the criminal process on an accused person, even if acquitted; the potentially “chilling effect” on free speech as a result, including for members of the press and their employers or those who publish their material online; the public interest and importance of free speech in a democratic society to promote public debate and hold government, corporations and others to account; and the potential for abuse of the offence, including in the context of domestic or personal disputes.

41. Other considerations tend to support a finding that s 21(2) of the Cybercrime Code Act is reasonably justifiable, which are set out at paragraph 34 of her Honour’s judgment:

On the other hand it may be relevant to consider: the fact that defences of truth, public benefit, fair comment and good faith are available; an individual’s right to privacy and reputation; the potential economic and psychological harm caused to an individual by the publication of defamatory material, especially when published online; the enduring nature of such material; the prevalence of social media; the potential for such material to vilify vulnerable persons or particular groups or incite violence; and the responsibility of service providers for allowing the dissemination of such material; whilst bearing in mind the availability of other offences like cyber bullying and cyber harassment pursuant to ss 22 and 23 of the Cybercrime Code Act, respectively.

42. We are encouraged by s 39(3) of the Constitution to consider a range of materials to determine the question of reasonable justifiability. In particular we are invited to consider how similar issues have been addressed in overseas jurisdictions. Berrigan J has assisted us greatly in this task at paragraphs 36 and 37 of her judgment.

A cursory review of some of the international authorities and jurisdictions referred to in s 39 of the Constitution show that several have abolished or called for the abolition of criminal defamation or restricted its operation: see for instance the United Kingdom (abolished the offence by the Coroners and Justice Act 2009); Kenya (held the offence to be unconstitutional in Jacquline Okuta & Anor v Attorney General & 2 Ors [2017]); the UN Human Rights Committee (General Comment 34, UN Doc CCPR/C/GC/34 at [47] which calls for States to consider decriminalising or restricting the offence); the Council of Europe (Resolution 1577, 2007, Towards Decriminalisation); the European Court of Human Rights (which imposes strict protections in the case of criminal defamation and has held that the imposition of a prison sentence will amount to a violation of Article 10: Belpietro v Italy (2013), Mika v Greece (2013) and Maripori v Finland (2013); and the African Court on Human and People’s Rights (which has held that criminal defamation is in violation of the ECOWAS Treaty: Konaté v Burkina Faso No 004/2013, African Court on Human and Peoples’ Rights).

37. This is to be compared, however, with the states of Australia which continue to criminalise defamation (most requiring a person to intend to cause “serious harm”, eg s 365 Criminal Code Queensland, see also NSW, Tasmania, South Australia and Western Australia; or require “malicious” conduct, as under s 10, Wrongs Act Victoria; or require an intention to cause loss or interfere with lawful duties, s 204 Criminal Code Northern Territory) attracting imprisonment of up to 2 or 3 years; and Canada where a maximum of 3 years applies for knowingly publishing libelous material: s 298(1) Criminal Code.

43. We consider that the considerations tending to support a finding that s 21(2) of the Cybercrime Code Act is reasonably justifiable outweigh those tending to support the opposite proposition. We acknowledge that in some jurisdictions criminal defamation offences have been struck down as unconstitutional or contrary to the human rights provisions of local law. However, we are required to make a determination suitable to the current circumstances of Papua New Guinea.

44. The criminalisation of defamatory publications is not new to Papua New Guinea. The Defamation Act 1962 created, until the repeal of s , in 2016, an offence of criminal defamation. The Criminal Code now contains, by virtue of an amendment in 2016, a new Division 5.10 entitled “criminal defamation”, the centrepiece of which is s 362B, which creates the offence of unlawful publication of defamatory matter.

45. We consider there is a clear and present danger to public safety, public order and public welfare if publication of defamatory material by use of electronic systems or devices were allowed to be made without restriction, including by criminal sanction.

46. We determine that the regulation and restriction of the exercise of the right to freedom of expression imposed by s 21(2) of the Cybercrime Code is “reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind”.

47. Section 21(2) of the Cybercrime Code Act meets the third requirement of s 38(1) of the Constitution.

Conclusion re question 2

48. We are satisfied that the first, second and third interveners have discharged the burden of showing that s 21(2) of the Cybercrime Code complies with the three requirements of s 38(1), in that:

• first, it has been made and certified in accordance with s 38(2);
  
• secondly, it restricts the exercise of the right to freedom and expression and publication that is “necessary” for the purpose of giving effect to the public interest in public safety, public order and public welfare; and
  
• thirdly, it is a law that is reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind.
  

49. The answer to question 2 is yes, s 21(2) of the Cybercrime Code complies with s 38 of the Constitution.

QUESTION 3: IS SECTION 21(2) OF THE CYBERCRIME CODE ACT INVALID FOR BEING INCONSISTENT WITH SECTION 46 OF THE CONSTITUTION?

50. This is the principal question as it concerns the constitutionality of s 21(2) of the Cybercrime Code Act. The answer is driven by our answer to question 2.

51. We conclude that no, s 21(2) of the Cybercrime Code Act is not invalid as, although it restricts the exercise of the right to freedom of expression and publication in s 46 of the Constitution, it is a law that complies with s 38 of the Constitution and the restriction it imposes is permissible under s 46(1)(c) of the Constitution.

ORDER

1 The answers to the questions raised by this reference are:

Question 1: Yes, s 21(2) of the Cybercrime Code Act restricts the exercise of the right to freedom of expression and publication in s 46 of the Constitution.

Question 2: Yes, s 21(2) of the Cybercrime Code Act complies with the requirements of s 38 of the Constitution.

Question 3: No, s 21(2) of the Cybercrime Code Act is not invalid for being inconsistent with s 46 of the Constitution

2 Each intervener will bear their own costs.
____________________________________________________________
Solicitor-General: Lawyer for the First Intervener
Acting Public Prosecutor: Lawyer for the Second Intervener
Public Solicitor: Lawyer for the Third Intervener
Javati Lawyers: Lawyer for the Fourth Intervener