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Saturday, October 23, 2021

Unpopular Cyber Crime Provision: A Slippery Ground to the Ignorant By Samuel Omotoso

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Introduction

“Ignorantias jury non-excusat” is a Latin maxim translated to English as; ignorance of the law is not an excuse. In other words “I did not know” is not a defence in law. Hence, where a person is found to have committed an offence or a civil wrong, saying he was not aware that his action is in breach of the law will not save him the consequences of his action(s). While this is true, in all sincerity certain persons have committed acts without knowing that they are in breach of law. For instance, where someone promises to marry another and the other party agrees and any of them breaks this promise, if sued, he/she might be guilty of what is “known as Breach of Promise to Marry”. Let me simplify; A guy chats up a lady on Whatsapp, the chat gets intense and he says “I am gonna marry you, you are everything I need in a woman” and she says “I would love that. When will you propose?” and it goes on and on. What might seem like a simple flirt might land any party who backs off; a fine to the tune of hundreds of thousands for monetary compensation (damages).

The Cybercrimes Act 2015

However, my focus will be on the CYBERCRIMES (PROHIBITION, PREVENTION, ETC) ACT, 2015. Baron Verulam of Verulam and Viscount of St. Albans 1561-1626 (English philosophers) once said that ‘Crime is always a by-product of an innovation or invention”. With the advent of the computer, the internet and various technological innovations, there arose monstrous criminal and anti-social activities perpetrated by several criminals on unsuspecting users on these huge technological resources. It must be noted that cybercrime is one of the teething problems amongst others of the invention and introduction of technology and the computer into society. As much as the advent of technology has brought about speed, ease and breadth in the exchange of information within and without borders, it has indirectly and undeniably brought about the invention of modern-day crimes which were not known to or covered by the existing criminal legislations in Nigeria.

In response to the various requests and demands from concerned stakeholders in both the ICT and legal sectors, former President Goodluck Jonathan, at the twilight of his administration, signed into law the Cybercrime (Prevention, Prohibition etc.) Act on May 15, 2015. (hereinafter referred to as the Act). The Act on that day entered into the corpus of legislations validly in force within the Nigerian legal system. Thus, the principal aim of this piece is to examine a key and notable provision of the Act.

Before delving into the examination of the Act, I consider it apposite to explain what cybercrime is. In simple, compact terms, cybercrime is any crime that involves a computer and a network. Toun Adebiyi (2004) defines it simply as: “unlawful acts using the computer as either a tool or a target or both”. DC Debarati Halder and Dr K. Jaishanker (2011) define cybercrime as “offences that are committed against individuals or groups of individuals with a criminal motive to intentionally harm the reputation of the victim or cause physical or mental harm or loss, to the victim directly or indirectly, using modern telecommunications networks such as internet (chat rooms, emails, notice boards and groups) and mobile phones (SMS/MMS)”.

With the above foundation about cybercrime properly laid, attention will now be turned to a key and pivotal provision of the Act which will be the fulcrum of this write-up.

Perhaps the most notorious section in The Act is section 24. The section is significant because of the role it plays on the regulation of social media in Nigeria.

According to Section 24 of the CYBERCRIMES (PROHIBITION, PREVENTION, ETC) ACT, 2015 –

Any person who knowingly or intentionally sends a message or other matter by means of computer systems or network that –

(a)Is grossly offensive, pornographic or of an indecent, obscene or menacing character or causes any such message or matter to be so sent;…

Commits an offence under this Act and is liable on conviction to a fine of not more than N7,000,000 or imprisonment for not more than 3 years or to both such fine and imprisonment.

A computer in this context includes but is not limited to; Laptop, Tablets and mobile phones. Therefore it will suffice to state that section 24 of the CYBERCRIMES (PROHIBITION, PREVENTION, ETC) ACT, 2015 (hereinafter refers to as The Act) enunciates that where a person knowingly sends a message via short message service (SMS), Whatsapp, Facebook or any other means through a computer device which is grossly offensive or contains pornographic content, where sued could be liable on conviction to a fine of not more than N7,000,000 or imprisonment for not more than 3 years or to both. The Act did not categorically state, but one can safely imply that such actions can only be categorized as an offence when sent to an unwilling party.

I bet a lot of persons did not know that sending pornographic contents could land them in murky waters, but the aforementioned Act is clear and sacrosanct and should be interpreted literarily. For instance; Mr A surfing the internet with his mobile device, gets bored and goes on Twitter, Facebook, Whatsapp or via any other means using the computer system and sends a nude picture directly to Miss B or posts it on his Whatsapp status or in a Whatsapp group, or on his Twitter page; In such instance, He is liable under the provision of section 24 of this Act.  It is definitely beyond argument that a lot of persons have committed this offence without even knowing it is an offence. Well, now you know.

Conclusion

Some authors have written that this provision is cancerous and affects the freedom of expression of Nigerians as embedded in 39(1) of the Constitution of the Federal Republic of Nigeria. Section 39(1) of the Constitution states;

Every person shall be entitled to freedom of expression, including the freedom to hold opinions and to receive and impart ideas and information without interference.

This might be the case or may be otherwise. We will safely take a stand when it is tested upon the judicial waters.  But for now, the provisions of section 24 should be interpreted literarily.

Therefore, when next you want to send “that picture or video” on a group or as a direct message on social media or via email or short messaging service (SMS) you should cross-check so as to avoid touching stories.

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