Child pornography, revenge pornography, and the non-consensual distribution of private and intimate images have been on the ascendancy in recent times. Ghana’s new Cybersecurity Act, 2020 (Act 1038) responds to these issues by criminalising such conduct with stiff sanctions. This Q&A, which is the first part in a series, takes a look at some of the key provisions in Ghana’s new Cybersecurity Act partly aimed at protecting children and adults from the wrongful and non-consensual exposure of their intimate images in cyberspace.
(a) Is it an offence for a person to release or put indecent images of children online?
Yes. It is an offence for a person to take indecent images of children and expose these images either through sales or online streaming – regardless of whether the streaming is for reward or not.
(b) Have I committed an offence by merely keeping or having in my possession indecent images of children?
Yes. It is an offence for a person to have or keep indecent images or photographs of children in a computer system, on a computer or any electronic storage medium. Remember, the ultimate goal of the act is to prevent the taking of indecent images in the first place.
(c) What are the penalties for persons who do any of the things in (a) and (b)?
A person who commits any of these offences risks a fine of between 2500-5000 penalty units and a jail term of between 5 to 10 years.
(d) What does it mean for a person to publish an indecent photograph, image, visual recording?
A person publishes an indecent photograph, image, or visual recording if that person passes on that indecent photograph, image, or visual recording to another person. Also, a person is guilty of indecent publication if that person puts up the indecent image, photograph, recording for sale. Indecent images include materials that depict (a) children engaged in sexually explicit or suggestive conduct; and (b) children appearing to be engaged in sexually explicit or suggestive conduct. Written and audio materials may fall within this description.
(e) Does the Act protect children from cyber seductions, solicitations, grooming and enticements?
Yes. The Act makes it an offence for a person to use cyberspace (including computer online systems, internet services, local bulletin services, and any other device capable of electronic data storage) to seduce, solicit, lure, groom, entice, or to attempt to entice a child to solicit unlawful sexual conduct of or with any child.
It does not matter whether the attempt to seduce, solicit, lure, groom, or entice the child was successful or not. An attempt is enough to make one guilty. Under Ghanaian criminal law, the punishment for attempting to commit a crime is the same as the punishment for actually committing the act.
(f) Can I be fined for using cyberspace to seduce, solicit, lure and groom children for unlawful sexual purposes?
A person who commits the offence or attempts to commit the offence risk a jail term of between five to fifteen years. There is no option of a fine.
(g) Does an internet service provider, website host, and providers of computer-online services face any exposures for the use of their medium for seducing, soliciting, luring, and grooming children?
Yes. Internet service providers, owners and operators of online services, weblogs, and internet bulletin boards risk being charged for aiding and abetting persons who seduce, solicit, lure, groom children, or attempt to do so. The law specifically makes it an offence for internet service providers to permit people to use their services for facilitating, encouraging, offering, or soliciting unlawful sexual conduct of or with a child.
(h) Is it an offence for a person to share information that makes it possible for the cyberstalking of children?
Yes. It is an offence for a person to use the internet as a platform to compile, transmit, publish, reproduce, buy, sell, receive, exchange, or disseminate information related to a child to identify the child to arrange a meeting with the child to engage in sexual intercourse, sexually explicit conduct, or unlawful sexual activity.
(i) Who is a child under the Act?
A child is a person under the age of eighteen years.