Sexual offences: pornography and children

The Cybercrimes and Related Matters Bill

3.136 In 2015 The Department of Justice and Constitutional Development consulted with various stakeholders on the Cybercrimes and Related Matters Bill. Cabinet was thereafter requested to approve that the Department may engage on a broad consultation process on the Bill. The Bill will be published for general comment once Cabinet approval is granted. The Bill seeks to create offences for cybercrimes and to impose penalties; to regulate jurisdiction in respect of cyber matters; to regulate the powers to investigate, search and access or seize data; to further regulate aspects of international cooperation in respect of the investigation of cybercrime; to provide for the establishment of a 24/7 point of contact; to provide for the establishment of various structures to deal with cyber security; to regulate the identification and declaration of National Critical Information Infrastructures and measures to protect National Critical Information Infrastructures; to further regulate aspects relating to evidence; to impose obligations on electronic communication service providers regarding aspects which may impact on cyber security; to provide that the President may enter into agreements with foreign States or territories to promote cyber security; to repeal and amend certain provisions of the Electronic Communications and Transactions Act, 2002.

3.137 The Bill defines a child as a person under the age of 18. An earlier draft of the Bill presented to the Commission Advisory Committee on 6 March 2015 contained a definition of “child pornography” which mirrors that of the Sexual Offences Act. Clause 20 criminalised a number of offences facilitated through a computer network or electronic communications network under the broader heading child pornography. The offences committed by persons included:

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  procuring, obtaining, accessing, knowingly assisting, facilitating the procurement obtaining or accessing of child pornography through a computer network or electronic communications network (clause 20(1));
  
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  possessing child pornography on a computer data storage medium, a computer device, a computer network, a database or an electronic communications network (clause 20(2));
  
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  production of child pornography for the purpose of making it available, distributing it or broadcasting it by means of a computer network or an electronic communications network (clause 20(3));
  
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  making, causing or assisting the making available, distributing or broadcasting of child pornography by means of a computer network or an electronic communications network (clause 20(4));
  
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  advocating, advertising, encouraging or promoting child pornography or the sexual exploitation of children by means of a computer network or an electronic communications network (clause 20(5)); and
  
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  processing or facilitating a financial transaction, knowing that such transaction will facilitate access to, or the distribution or possession of, child pornography, by means of a computer network or an electronic communications network (clause 20(8)).
  

3.138 The offences committed by an electronic communications service provider included:

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  making, causing or assisting in making available, distributing or broadcasting of child pornography through a computer network or an electronic communications network (clause 20(6));
  
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  advocating, advertising, encouraging or promoting child pornography or the sexual exploitation of children by means of a computer network or an electronic communications network (clause 20(7));
  

3.139 Clause 20(9) placed a reporting obligation on all persons or electronic communications service providers who have knowledge of the commission of offences in sub clauses (1) to (8). The knowledge or suspicion must be reported as soon as possible to a police official, failing which a conviction for contravention of this obligation may be met with a fine not exceeding R5 million or to imprisonment for a period not exceeding 5 years or to both such fine and imprisonment. In respect of sub-clauses (1) to (8) the fact that the crime is committed by electronic means is seen as an aggravating factor.

3.140 The definition of pornography used in the Bill made reference to the irrelevance of “aesthetic feelings” as is the case in the Sexual Offences Act. 
3.141 The Bill included the definitions “sexual exploitation”, “sexual offence”, “sexual penetration” and “sexual violation”. The first two definitions referred back to the Sexual Offences Act, but the latter definitions were full definitions which mirror the Sexual Offences Act.  The reader would have to refer back to this Act to understand what is meant by the first two definitions, for example sexual exploitation as contemplated in section 17 is a narrow interpretation of the wider understanding of sexual exploitation and is actually restricted to child prostitution.  The term “sexual offence” is however only found in the definitions section and nowhere else in the Bill.
3.142 The provisions included in the Bill including clause 20 are the minimum requirements for compliance with the European Union Convention on Cybercrime (Budapest Convention).²³⁴  Grooming and the visual depiction of other sexual offences such as pre-recorded rapes as has become more prevalent or live webcam sexual abuse irrespective of age were not addressed in this Bill.  The production of child abuse material by children, particularly where the images are produced as a result of grooming also did not seem to be included in this version of the Bill. It was not clear if the Bill intends for there to be strict liability for offences involving child pornography. A later draft of the Bill no longer contains substantive provisions on child pornography. In the schedule to the Bill a proposed amendment is made to the Sexual Offences Act. The Bill proposes the insertions of definitions of “computer data storage medium”; “computer device”; “computer network”; “database”; “electronic communications network”; and “electronic communications service provider”. It further proposes the insertion of section 20A dealing with cybercrimes involving child pornography. As stated above, it is instructive to note that although South Africa has signed the European Union Convention on Cybercrime it has neither ratified it, nor the African Union Convention on Cybercrime and is not party to any other international agreement dealing specifically with cybercrime.²³⁵

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