Cybercrime laws being updated in Papua New Guinea

The telecoms sector has been growing rapidly in Papua New Guinea in recent years, with connectivity quickly spreading to the remotest parts of the country, and linking a diverse range of customers to each other and the outside world. While the growth of cellular coverage and the internet have been almost universally praised, the tech revolution also raises questions about the dangers of these technological developments and how to deal with them.

There are a myriad of concerns, including cyberbullying, defamation, the sending of indecent materials, hacking, sedition and the spreading of false information. PNG’s government believes that it is essential to establish policies, legislation and procedures that will address any problems that could arise by the use and misuse of the internet and related technologies. Ultimately, the issue is cast as one of national security. “We have to understand from a security point of view what is coming in and what is going out of the country,” Jim Miringtoro, minister for communication and information technology, told OBG.

Creating the right framework will be a challenging task. The country’s efforts against cybercrime will require legislators to deal with complex technologies and an ever evolving range of services, the overcoming of numerous implementation challenges and the balancing of the desire for safety and security with the need for free speech and freedom of association.

Beyond Section 266

Some of the efforts are straightforward and not at all controversial. PNG Customs has started working with the National Information and Communications Technology Authority (NICTA) in order to stop the flow of illegal ICT goods into the country. Those citizens and non-citizens who do bring in unapproved goods will face fines and the possible confiscation and destruction of the products.

NICTA publishes a list of goods not approved for importation, including cell phones, cordless phones, fax machines, GSM telephones, mobile radios, modems, wireless remote devices, PABXs, pagers, radio receivers, radio transmitters, satellite earth stations, telecoms switching equipment and telephone instruments.

More generally, the government is concerned about the use of communications devices for illegal purposes. Legislation already exists to deal with such activity. Under Section 266 of the NICTA Act, the abuse of ICT services is an offence. That includes the downloading of material that could be considered indecent or obscene or the use of electronic devices to trouble another person, by sending false information or by persistently using the service to harass them.

In recent years, a number of cases have been brought to court under Section 266. These cases have involved the use of offensive language, the sending of pornographic material and the harassment of a person (in this case a politician) by using offensive language. However, the problem is seen as far too complicated and potentially serious to be covered by the existing NICTA Act. Other existing laws are relevant to the sector, but they are either silent on the issue of cybercrime or not fully developed as they relate to internet offences. The National Policy on Information and Communications does not contemplate cybercrime, instead focusing more on creating a healthy environment for the dissemination of information.

Updates

Cybercrime was mentioned in the National ICT Policy in 2008, but it was not seen as a priority. The National Information and Telecommunications Act, which followed in 2009, added considerably to the country’s strategy on fighting cybercrime, but little of substance was implemented. The Criminal Code Act 1974 covers pornography and indecent material, but the act does not discuss the use of electronic communications in the breaking of laws.

To more directly address the problems, the government is working on policies and legislation that focus on potential offences. The first step will be to have all SIM cards registered so that the sender of material deemed potentially criminal can be identified. Despite the country having an estimated 10m mobile phone numbers, registration has not been required in the past. The government is also working on the development of a comprehensive cybercrime law. It argues that it needs the legislation to help protect the country’s culture in the age of the internet, raise confidence in e-commerce and harmonise its laws with other jurisdictions. While the legislation is still being drafted, the possible components included in it are wide-ranging and potentially quite powerful. A so-called “kill switch” may be implemented, allowing the internet to be shut down if it presents a threat to the nation. The main issue now under discussion is where to put it and who will have ultimate control over it.

UN Ideas

The UN has conducted considerable research on the subject of regulating the internet, and has suggested a long list of reforms to combat cybercrime in PNG. In addition to the passing of legislation – in both criminal law and procedural law – it is calling for the harmonisation of the law with those in other countries (following established models and frameworks). It says that harmonisation is important if PNG is to effectively cooperate with other jurisdictions in the pursuit of suspects. The lack of standardisation is also a problem from the international perspective, as it can create safe havens for cybercriminals to operate. Two templates already exist: the Commonwealth Model on Computer and Computer-related Crime (2002) and the Skeleton for Cybercrime Legislation, which was developed for the Pacific Region with EU funding.

The UN adds that education and awareness are vital, as is the building of capacity. Other related developments are required, according to the UN. The country must deal with the issue of the admissibility of electronic evidence in court, create systems that allow for the institutions involved in the pursuit of cybercrime to work with the relevant electronic information and establish a forensics lab that can handle electronic work. Finally, the UN notes that the liability and responsibilities of the ICT providers must be firmly established, so the companies can provide a reliable service in the framework of cybercrime control.

Critics

The policy has generated considerable concern within the country. Some observers have objected to the level of government control over the network that has been proposed, and say it could have a negative effect on free speech. Social media platforms in PNG have allowed for considerable criticism of government and for the organisation of protests. It is feared that under the new law there may be no clear line as to what will be policed, and that comments criticising the government could be seen as constituting an offence.

Spreading information considered “false” could be punishable, raising the question of what constitutes false, and whether the government would consider statements critical of it as a crime. Other critics have noted that statements that have “negative impacts on society” are also covered, and this could be broadly defined to the point of outlawing almost any controversial comment. Sir Mekere Morauta, a former prime minister and central bank governor, has come out strongly against the policy, arguing that it constitutes an abuse of power and noting that free and unfettered speech are essential to the proper functioning of a modern country. “Freedom of speech and a fearless, independent media are the cornerstones of democracy, and must be defended by all sections of society,” Morauta said.

Peter O’Neill, the current prime minister, has defended the development of cybercrime policies, saying that SIM card registration was becoming standard around the world and that people were not being stopped from having a phone or a social media account. He added that the law will simply force people to take ownership of their words and responsibility for their actions, and argued that free speech was not being limited by the policy, but that prudent measures were being taken in a time of terrorism and cybercrime. He suggested in his response that Australia had similar laws and regulations in place for dealing with online threats. “Nobody is stopping people from talking as alluded to by Sir Mekere,” said O’Neill.

Some Support

The debate taking place in PNG is one debate that is taking place globally. Countries are struggling to find the right legislative support for the Internet as they seek a balance between personal freedoms and the need to enforce laws and defend themselves from threats. In PNG the debate is an active one, and the critics of the plan are gaining headlines, but more policing of the internet does have support.

Despite concerns about the use of cybercrime laws to limit free speech, mainstream society in the country is overwhelmingly favours efforts to combat cybercrime. Some of PNG’s academics are siding with the government as well. They say that the devices expose users to a wide variety of threats. These include identity theft, cyberbullying, scams and the defaming of people online. Because previous laws and existing statutes had so little to say on the matter of online security, the prosecution of offenders may have been difficult, they argue.