Cybercrime And Computer Related Crimes - Offences (Ss 4-19)

Link to law: http://www.elaws.gov.bw/desplaylrpage1.php?id=1320

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[Ch0806s4]4. Unauthorised access to a computer or computer

system

(1)

Subject to subsections (2) and (3), any person who-

(a) accesses the whole or any part of a

computer or computer system, knowing that the access he or she intends to

secure is unauthorised; or

(b) causes a computer or computer system to perform

any function as a result of unauthorised access to such system,

commits an offence and shall on conviction be liable to a fine not

exceeding P10,000 or to imprisonment for a term not exceeding six months, or to

both.

(2) A

person shall not be liable under subsection (1) where the person-

(a) is a person with a right to control the

operation or use of the computer or computer system and exercises such right in

good faith;

(b) has the express or implied consent of a person

empowered to authorise him or her to have access to the computer or computer

system;

(c) has reasonable grounds to believe that he

or she had such consent as specified in subparagraph (b);

(d) is acting pursuant to measures that may be

taken under Part III of this Act; or

(e) is acting in reliance of any statutory

power arising under any enactment or a power conferred under any Act, for the

purpose of-

(i) obtaining information, or

(ii) taking possession of any document or

other property.

(3) A

person’s access to a computer or computer system is unauthorised where the

person-

(a) is not himself or herself entitled to

access of the kind in question;

(b) does not have consent, from any person who

is so entitled, to access of the kind in question; or

(c) exceeds the access he or she is authorised.

(4)

For the purposes of this section, it is immaterial that the unauthorised access

is not directed at-

(a) a particular programme or data;

(b) a programme or data of any kind; or

(c) a programme or data held in any particular

computer or computer system.

[Ch0806s5]5. Unauthorised access to computer service

(1)

Subject to subsection (5), a person commits an offence where such person,

knowingly and by any means, without authorisation or exceeding the

authorisation he or she is given-

(a) secures access to any computer or computer

system for the purpose of obtaining, directly or indirectly, any computer

service; or

(b) intercepts or causes to be intercepted,

directly or indirectly, any function of, or any data within, a computer or

computer system.

(2) A

person who commits an offence under subsection (1) shall on conviction be

liable to a fine not exceeding P20,000 or to imprisonment for a term not

exceeding one year, or to both.

(3)

Where, as a result of the commission of an offence under subsection (1), the

operation of a computer or computer system is impaired, or data contained in

the computer or computer system is suppressed or modified, a person shall on

conviction be liable to a fine not exceeding P40,000 or to imprisonment for a

term not exceeding two years, or to both.

(4)

For the purposes of this section, it is immaterial that the unauthorised access

or interception in subsection (1) is not directed at-

(a) a particular programme or data;

(b) a programme or data of any kind; or

(c) a programme or data held in any particular

computer or computer system.

(5) A

person shall not be liable under subsection (1) where he or she-

(a) has the express or implied consent of both

the person who sent the data and the intended recipient of such data; or

(b) is acting in reliance of a statutory power

arising under any enactment or a power conferred under any Act.

[Ch0806s6]6. Access with intent to commit an offence

(1) A

person who, with intent to commit an offence under any other enactment, causes

a computer or computer system to perform any function for the purpose of

securing access to-

(a) any programme or data held in a computer or

computer system; or

(b) a computer service, commits an offence and

shall on conviction be liable to a fine not exceeding P10,000 or to

imprisonment for a term not exceeding six months, or to both.

(2)

For the purposes of this section it is immaterial that-

(a) the access referred to under subsection (1)

is authorised or unauthorised; or

(b) the further offence to which this section

applies is committed at the same time as when the access is secured or at any

other time.

[Ch0806s7]7. Unauthorised interference with data

(1) A

person who intentionally, without lawful excuse or justification, does any of

the following acts-

(a) destroys, deletes, suppresses, alters or

modifies data;

(b) renders data meaningless, useless or

ineffective;

(c) obstructs, interrupts or interferes with-

(i) the lawful use of data, or

(ii) any person in the lawful use of data; or

(d) denies access to data to any person

entitled to it, commits an offence and shall on conviction be sentenced to a

minimum fine of P10,000 but not exceeding P40,000, or to imprisonment for a

minimum term of six months but not exceeding two years, or to both.

(2)

Where, as a result of the commission of an offence under subsection (1), the

following is impaired, suppressed, altered or modified-

(a) the operation of the computer or computer

system;

(b) access to any programme or data held in any

computer or computer system; or

(c) the operation of any programme or the

reliability of any data,

a person shall on conviction be liable to a fine not exceeding P20,000 or

to imprisonment for a term not exceeding one year, or to both.

(3) A

person shall not be liable under this section where the person-

(a) is acting pursuant to measures that may be

taken under Part III of this Act; or

(b) is acting in reliance of any statutory

power arising under any enactment or a power conferred under any Act, for the

purpose of-

(i) obtaining information, or

(ii) taking possession of any document or

other property.

(4)

An interference is unauthorised-

(a) where the person whose act causes it is not

himself or herself entitled to determine whether the interference of the kind

in question should be made; or

(b) where the person does not have consent,

from any person who is so entitled, to the interference of the kind in

question.

(5)

For the purposes of this section, it is immaterial whether an unauthorised

interference, or any intended effect of it, is temporary or permanent.

[Ch0806s8]8. Unauthorised interference with a computer

or computer system

(1) A

person who intentionally, without lawful excuse or justification-

(a) hinders or interferes with the functioning

of a computer or computer system; or

(b) hinders or interferes with a person who is

lawfully using or operating a computer or computer system, commits an offence

and shall on conviction be liable to a fine not exceeding P5,000 or to

imprisonment for a term not exceeding three months, or to both.

(2)

For the purposes of subsection (1) "hinder", in relation to a

computer or computer system, includes-

(a) cutting the electricity supply to a

computer or computer system;

(b) causing electromagnetic interference to a

computer or computer system;

(c) corrupting a computer or computer system by

any means;

(d) inputting, deleting, altering or modifying

data; and

(e) impairing, by any means, the connectivity,

infrastructure or support of a computer or computer system.

(3) A

person who intentionally, without lawful excuse or justification, commits an

act which causes, directly or indirectly-

(a) a denial, including a partial denial, of

access to a computer or computer system; or

(b) an impairment of any programme or data

stored in a computer or computer system,

commits an offence and shall on conviction be sentenced to a minimum fine

of P10,000 but not exceeding P40,000, or to imprisonment for a minimum term of

six months but not exceeding two years, or to both.

[Ch0806s9]9. Unlawful interception of data

A

person who intentionally and by technical means, without lawful excuse or

justification, intercepts-

(a) any non-public transmission to, from or within

a computer or computer system; or

(b) electromagnetic emissions that are carrying

data, from a computer or computer system,

commits an offence and shall on conviction be sentenced to a minimum fine

of P10,000 but not exceeding P40,000, or to imprisonment for a minimum term of

six months but not exceeding two years, or to both.

[Ch0806s10]10. Unlawful possession of devices or data

(1) A

person who intentionally, without lawful excuse or justification, manufactures,

sells, procures for use, imports, exports, distributes or otherwise makes

available, a computer or computer system or any other device, designed or

adapted for the purpose of committing an offence under this Act, commits an

offence and shall on conviction be liable to a fine not exceeding P20,000 or to

imprisonment for a term not exceeding one year, or to both.

(2) A

person who intentionally, without lawful excuse or justification, receives, or

is in possession of, one or more of the devices under subsection (1), commits

an offence and shall on conviction be liable to a fine not exceeding P20,000 or

to imprisonment for a term not exceeding one year, or to both.

(3) A

person who is found in possession of any data or programme with the intention

that the data or programme be used, by the person himself or herself or by

another person, to commit or facilitate the commission of an offence under this

Act, commits an offence and shall on conviction be liable to a fine not

exceeding P20,000 or to imprisonment for a term not exceeding one year, or to

both.

(4)

For the purposes of subsection (3), "possession of any data or

programme" includes-

(a) having possession of a computer or computer

system or data storage device that holds or contains the data or programme;

(b) having possession of a document in which

the data or programme is recorded; and

(c) having control of the data or programme

that is in the possession of another person.

[Ch0806s11]11. Unauthorised disclosure of password

A

person who intentionally, without lawful excuse or justification, discloses,

sells, procures for use, distributes or otherwise makes available, any

password, access code or other means of gaining access to the whole or part of

a computer or computer system-

(a) for wrongful gain;

(b) for any unlawful purpose;

(c) to overcome security measures for the

protection of data; or

(d) with the knowledge that it is likely to

cause prejudice to any person,

commits an offence and shall on conviction be liable to a fine not

exceeding P10,000 or to imprisonment for a term not exceeding six months, or to

both.

[Ch0806s12]12. Damage to a computer or computer system

(1)

In this section "computer contaminant" includes any programme which-

(a) modifies, destroys, records or transmits

any data or programme residing within a computer or computer system;

(b) usurps the normal operation of a computer

or computer system; or

(c) destroys, damages, degrades or adversely

affects the performance of a computer or computer system or attaches itself to

another computer resource and operates when a programme, data or instruction is

executed or some other event takes place in that computer or computer system.

(2) A

person who intentionally introduces, or causes to be introduced, a computer

contaminant into any computer or computer system which causes, or is capable of

causing, damage to such computer or computer system, commits an offence and

shall on conviction be sentenced to a minimum fine of P40,000 but not exceeding

P100,000, or to imprisonment for a minimum term of two years but not exceeding

three years, or to both.

[Ch0806s13]13. Protected computers

(1)

In this section, a "protected computer" means a computer or computer

system or programme or data used directly in connection with, or necessary for-

(a) the security, defence or international

relations of Botswana;

(b) the existence or identity of a confidential

source of information relating to the enforcement of a criminal law;

(c) the provision of services directly related

to communications infrastructure, banking and financial services, public

utilities, public transportation or public key infrastructure; or

(d) the protection of the public, including

systems related to national emergency organisations.

(2)

Where access to a protected computer is obtained in the course of the

commission of an offence under this Act, the person convicted of any such

offence shall be sentenced to a minimum fine of P40,000 but not exceeding

P100,000, or to imprisonment for a minimum term of two years but not exceeding

three years, or to both.

(3)

For the purposes of any prosecution under this section, it shall be presumed,

until the contrary is proved, that the person referred to in subsection (2)

knew that the computer was a protected computer if there was, in respect of the

computer, programme or data-

(a) provision for a warning within the

computer, programme or data; or

(b) a warning exhibited to the person to the

effect that unauthorised access to the computer, programme or data is

prohibited.

[Ch0806s14]14. Cyber extortion

A

person who performs or threatens to perform any of the acts described under

this Part, for the purposes of obtaining any unlawful advantage by-

(a) undertaking to cease or desist from such

actions; or

(b) undertaking to restore any damage caused as

a result of those actions,

commits an offence and shall on conviction be liable to a fine not

exceeding P10,000 or to imprisonment for a term not exceeding six months, or to

both.

[Ch0806s15]15. Cyber fraud

(1) A

person who performs any of the acts described under this Part, for the purposes

of obtaining any unlawful advantage by causing forged data to be produced, with

the intent that it be considered or acted upon as if it were authentic, commits

an offence and shall on conviction be liable to a fine not exceeding P20,000 or

to imprisonment for a term not exceeding one year, or to both.

(2) A

person who, with intent to procure any advantage for himself or herself or

another person, fraudulently causes loss of property to another person by-

(a) any input, alteration, deletion or

suppression of data; or

(b) any interference with the functioning of a

computer or computer system,

commits an offence and shall on conviction be liable to a fine not

exceeding P20,000 or to imprisonment for a term not exceeding one year, or to

both.

[Ch0806s16]16. Electronic traffic in pornographic or

obscene material

(1)

In this section-

(a) "publish" includes:

(i) to distribute, transmit, disseminate,

circulate, deliver, exhibit, lend for gain, exchange, barter, sell or offer for

sale, let on hire or offer to let on hire, offer in any other way, or make

available in any way,

(ii) to have in possession or custody, or

under control, for the purpose of doing an act referred to in subparagraph (a),

or

(iii) to print, photograph, copy or make in any

other manner (whether of the same or of a different kind of nature) for the

purpose of doing any act referred to in subparagraph (a);

(b) "child pornography" includes

material that visually or otherwise depicts-

(i) a child engaged in sexually explicit

conduct;

(ii) a person who appears to be a child

engaged in sexually explicit conduct; or

(iii) realistic images representing a child

engaged in sexually explicit conduct;

(c) "child" means a person who is

under the age of 14 years; and

(d) "sexually explicit conduct" means

any conduct, whether real or simulated, which involves-

(i) sexual intercourse, including

genital-genital, oral-genital, analgenital or oral-anal, between children, or

between an adult and a child, of the same or opposite sex;

(ii) bestiality;

(iii) masturbation;

(iv) sadistic or masochistic sexual abuse; or

(v) the exhibition of the genitals or pubic

area of a child.

(2) A

person who-

(a) publishes pornographic or obscene material

through a computer or computer system;

(b) produces pornographic or obscene material

for the purpose of its publication through a computer or computer system;

(c) possesses pornographic or obscene material

in a computer or computer system or on a computer data storage medium;

(d) publishes or causes to be published an

advertisement likely to be understood as conveying that the advertiser

distributes or shows pornographic or obscene material; or

(e) accesses pornographic or obscene material

through a computer or computer system,

commits an offence and shall on conviction be liable to a fine not

exceeding P5,000 or to imprisonment for a term not exceeding three months, or

to both.

(3) A

person who-

(a) publishes child pornography or obscene

material relating to children through a computer or computer system;

(b) produces child pornography or obscene

material relating to children for the purpose of its publication through a

computer or computer system;

(c) possesses child pornography or obscene

material relating to children in a computer or computer system or on a computer

data storage medium;

(d) publishes or causes to be published an

advertisement likely to be understood as conveying that the advertiser

distributes or shows child pornography or obscene material relating to

children; or

(e) accesses child pornography or obscene

material relating to children through a computer or computer system,

commits an offence and shall be sentenced to a minimum fine of P40,000

but not exceeding P100,000, or to imprisonment for a minimum term of two years

but not exceeding three years, or to both.

(4) A

person who, by means of a computer or computer system, communicates with-

(a) a person who is, or who the accused

believes is, under the age of 18 years, for the purpose of facilitating the

commission of the offence of child pornography under this Act, or the offences

of prostitution, rape or indecent assault under the Penal Code; Cap. 08:01

(b) a person who is, or who the accused

believes is, under the age of 16 years, for the purpose of facilitating the

commission of the offences of abduction or kidnapping of that person under the

Penal Code; or

(c) a person who is, or who the accused

believes is, under the age of 16 years, for the purpose of facilitating the

commission of the offence of defilement or any sexual offence of that person

under the Penal Code,

commits an offence and shall be sentenced to a minimum fine of P40,000

but not exceeding P100,000, or to imprisonment for a minimum term of two years

but not exceeding three years, or to both.

(5)

Evidence that the person in paragraph (a), (b) or (c) of

subsection (4) was represented to the accused as being under the age of 18

years or 16 years, as the case may be, is, in absence of evidence to the

contrary, proof that the accused believed that the person was under that age.

(6)

It shall not be a defence to a charge under subsection (4) that the accused

believed that the person he or she was communicating with was at least 18 or 16

years of age, as the case may be, unless the accused took reasonable steps to

ascertain the age of the person.

(7)

For the purposes of subsection (4), it does not matter that the person in

paragraph (a), (b) or (c) is a fictitious person,

represented to the accused as a real person.

[Ch0806s17]17. Unlawful disclosure by service provider

A

service provider who, without lawful authority, discloses-

(a) that an order under this Act has been made;

(b) any act done under an order; or

(c) any data collected or recorded under an

order,

commits an offence and shall be sentenced to a minimum fine of P10,000

but not exceeding P40,000, or to imprisonment for a minimum term of six months

but not exceeding two years, or to both.

[Ch0806s18]18. Attempt

(1) A

person who attempts to commit any of the offences described under this Part,

commits an offence and shall on conviction be liable to a fine not exceeding

P10,000 or to imprisonment for a term not exceeding six months, or to both.

(2)

For the purposes of this section, "attempt" shall have the meaning

ascribed to it under section 388 of the Penal Code.

[Ch0806s19]19. Parties to an offence

(1)

Where an offence is committed under this Part, each of the following persons is

deemed to have taken part in committing the offence and is deemed to be guilty

of the offence, and may be charged with actually committing it-

(a) a person who actually does the act or makes

the omission which constitutes the offence;

(b) a person who does or omits to do any act

for the purpose of enabling or aiding another person to commit the offence;

(c) a person who aids or abets another person

in committing the offence; or

(d) a person who counsels or procures any other

person to commit the offence.

(2) A

person who counsels or procures any other person to commit an offence may be

charged either with committing the offence or with counselling or procuring its

commission.

(3) A

conviction of counselling or procuring the commission of an offence entails the

same consequences in all respects as a conviction of committing the offence.