Cybercrimes And Other Press Related Infractions: The Legal Implications

By Ekemini Udim

(Being the text of a paper presented by Barr. Ekemini Udim as Keynote Speaker at a symposium organised for Journalists and Bloggers by the Ministry of Information & Strategy, Akwa Ibom State)

Preamble

It gives me great pleasure to be invited to address this gathering as the Keynote Speaker on this highly important subject. When the invitation was extended to me, I accepted it without hesitation. It was Edmund Burke who, during a parliamentary debate in the House of Commons in the Great Britain, described the press as the ‘’fourth estate of the realm.’’ He did not give this description for the fun of it, but he did so in recognition of the critical role played by journalists in maintaining balance in society and in the process, keeping society constantly informed. Journalists are the watchdogs and sentinels of society and one can only imagine how society would have been without journalists. The journalist educates and also entertains. The person who educates and entertains others must himself be fully armed, not only with the fine principles of journalism but also with the applicable provisions of the law. Here lies the importance of this gathering which is aimed at highlighting critical issues of law for the benefit of the journalist to assist the journalist in going about his legitimate work without falling on the wrong side of the law.

A few definitions

Cybercrime – means the use of computer as an instrument to further an unlawful end.[1] The Press – defined as those who work in the news media especially reporters and photographers.[2] Legal implications – means the consequences of one’s actions or inactions.

To the topic

Let us return to the topic of today’s discussion – Cybercrimes & Other Press Related Infractions: The Legal Implications. This takes us directly to the Cybercrimes (Prohibition, Prevention, Etc) Act, Laws of the Federation of Nigeria, 2015. This is an Act of the National Assembly of Nigeria. It was passed into law by both Chambers of the National Assembly. In compliance with law making procedure, the bill was assented into law on May 15, 2015 by the President and Commander-in-Chief of the Armed Forces of Nigeria, President Goodluck Ebele Jonathan.

The preamble to the Act describes it as: ‘’An Act to provide for the prohibition, detection, response, investigation and prosecution of cybercrimes in Nigeria; and for Related Offences.’’

Ladies and gentlemen, this preamble does not in any way suggest that the work of the journalist will be affected by the provisions of this Act. It is so harmless that the journalist may be tempted to look away from the law and not bother to peruse its content. This will be a dangerous decision to take. The reality is that the Cybercrimes Act, Laws of the Federation of Nigeria, has in its belly, provisions which every media practitioner must be mindful of. I shall highlight these sections in this paper in no particular order.

Section 24 – This section provides as follows: ‘’Any person who knowingly or intentionally sends a message or other matter by means of computer systems or network that he knows to be false, for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, ill-will or needless anxiety to another or causes such a message to be sent: commits an offence under this Act and shall be liable on conviction to a fine of not more than N7,000,000.00 or imprisonment for a term of not more than three years or to both such fine and imprisonment.’’[3]

Some words and phrases naturally stand out from this provision. They include ‘’grossly offensive’’ ‘’for the purpose of causing annoyance’’ ‘’obstruction’’ ‘’insult’’ ‘’injury’’ ‘’enmity’’ ‘’inconvenience’’ ‘’ill-will’’ and ‘’needless anxiety to another.’’ These words and phrases are capable of more than one interpretation. This is where the journalist must be deeply concerned and worried. In most cases, the words are subjective and can thus be interpreted differently or variously based on the standpoint of the individual. When words are capable of causing confusion or posing challenges of interpretation, what the law maker does is to include an Interpretation Section to the law. Such section clarifies every ambiguity that may arise in the course of the implementation of the law. In the Cybercrimes Act, there is an Interpretation Section; namely, section 58. Intriguingly, the words and phrases used in the now highly criticised Section 24 of the Act have not been defined in the interpretation section. This therefore leaves the journalist and the blogger at the mercy of the policeman or the secret service officer whose personal interpretation of the content of an article (mostly activated by a petition from a complainant) can lead to the arrest and detention of the journalist. Yes, the court will be the final interpreter of the law, but you know as much as I do that, the court is mostly invited after the journalist would have been arrested, harassed and detained for days and in some cases, for weeks if not months.

What the politician sees as being insulting, inconveniencing and annoying might not be seen in the same light by the journalist or by any other person. In any case, when the truth is told by the journalist, the guilty naturally becomes uncomfortable and finds the publication ‘’inconveniencing’’ ‘’insulting’’ ‘’injurious to his character’’ ‘’grossly offensive’’ and ‘’annoying.’’ I honestly do know why these adjectives were employed by the legislature in the drafting of a legislation as serious as the Cybercrimes Act. But as it stands today, this is the law and same can be activated against anybody.

It must be stated that this provision – section 24 of the Cybercrimes Act – is the first of its kind in the history of law making in Nigeria and being an Act of the National Assembly, its applicability is nationwide. The section is like a dragnet that can accommodate a lot of items and can send many people to jail. Today, every serious publishing house, has an online presence via the internet and via the social media handles, and the Cybercrimes Act is principally targeted at online publications (the cyberspace).

Thus, the writer of an article for a publishing house, the editor who must have edited and authorized the publication and, the publishing house as a corporate entity can each be made liable for an online publication adjudged to be insulting, inconveniencing, grossly offensive, annoying, obstructing, motivated by ill-will, injurious to character, and vexatious and contrary to section 24 of the Cybercrimes Act. Ladies and Gentlemen, you will agree with me, that anything – even the truth – can annoy a typical Nigerian Politician, depending on his mood at the time of the publication of the news item. The provision of Section 24 of the Cybercrimes Act thus makes the Nigerian journalist and blogger a highly endangered species.

The coming into force of section 24 of the Act has elicited mixed reactions from several quarters since 2015 till date and several journalists have been arrested, detained and taken to court pursuant to the law. Jonathan Rozen, a Senior Researcher, African Programme at the Committee to Protect Journalists (CPJ) recently called on online publishers in Nigeria to rise against the Cybercrimes Act of Nigeria, while observing that Section 24 of the Act is frequently being used to gag the Nigerian press, leading to the arrest of many journalists by security agents while denying them access to their lawyers and families.[4] Recent studies have also shown that cybercrime legislation is posing a threat to press freedom.[5] Without press freedom, the world is at the precipice of returning to the dark days of old when human rights and freedoms were disregarded at will at the whims and caprices of the leaders.

As noted earlier, many online publishers have been arrested, detained and some charged to court as a result of this law. Some of them are: Abba Jalingo (reason: publication of defamatory article against Gov. Ben Ayade of Cross River State). Abba was detained for several months. On August 8, 2015 a blogger by name Abubakar Sidiq Usman was arrested by armed operatives of the Economic and Financial Crimes Commission (EFCC) for criticising the commission in his blog. He was detained and later released. In September, 2015, another blogger, Emmanuel Ojo was forced into exile following threats to his life after he published a story about money laundering involving the then first lady of Ogun State. In October, 2015, Desmond Ike Chima, a blogger, was arrested and detained for publishing an article considered as ‘’damaging’’ about the Managing Director of one of the leading banks in Nigeria. Desmond spent 6 months in detention. He was later charged to court but the charge was dropped.

In August, 2015, one Seun Oloketuyi, a blogger was arraigned before the Federal High Court for publishing a story about the secret affairs of the Chief Executive of a bank. In September, 2015, Chris Nwandu, the then President of the Guild of Professional Bloggers of Nigeria was arrested and remanded in prison for 13 days after he expressed his personal opinion about the arrest and prosecution of Seun Oloketuyi. In August, 2015 one Musa Babale Azare was arrested in Abuja by officers of the Nigeria Police Force from Bauchi State for criticizing the policies and actions of Bauchi State Government on social media platforms. In March, 2017 two bloggers – Kemi Olunoyo and Samuel Walson were arrested and detained for one week for publishing an article online about a popular pastor in Rivers State. All these persons were accused of cyberstalking.

In Akwa Ibom State, bloggers like Utitofon Morgan and others have been arrested, detained and arraigned in court for making one publication or the other against persons who considered the publications offensive. Very recently, a Facebook user in Akwa Ibom State by name Soundcraft was arrested and charged to court for making a publication considered to be offensive to the person of the Governor of Akwa Ibom State. In the heat of the pandemic, a Facebook user going by the name, Deafpen was arrested and charged to court for cyberstalking following the publication he made wherein he accused some very important persons in the State of having amorous affairs with married women in some named hotels. The list indeed is endless.

Distinguished Ladies and Gentlemen, one of the things that stand out in the above examples is the fact that, section 24 of the Cybercrimes Act is not only available for activation by persons in Government, but also available to private citizens who can equally make complaints to the police or DSS for investigation and prosecution of anybody who writes falsehood against us on the internet. This therefore calls for caution in the use of the cyberspace by everybody.

But is the law entirely bad?

While in most quarters the law is seen as an attempt to cage or gag the press and unduly intimidate journalists and bloggers from playing their sacred role to society, it is viewed differently in other quarters. Thus, a man against whom a fabricated story was published by an internet user, which publication has caused him serious embarrassment and reputational damage, will surely hail the lawmakers for the inclusion of section 24 in the Cybercrimes Act. It is wickedness and clearly inhuman for a person to hide behind his computer and fabricated false and non-existing stories against a fellow human. No journalist, no blogger worth his name and integrity should engage in such ignoble practice. It is wrong. It is unconscionable. It is despicable. It is cowardice. It should never be contemplated let alone carried out.

From most fabricated stories, families have crumbled, business opportunities have been lost, people have been stigmatized in society, jobs and appointive positions have been lost and lost forever. People have gone into depression. Others have died.

Fake news is indeed a serious menace to society. The purveyors of this brand of ‘’journalism’’ are the ‘’emergency journalists’’ or ‘’the accidental journalists’’ most of whom do not have the patience to go through formal or even semi-formal training in the fine art of journalism which detests fabrication of news and defamation of character of persons. These are the ones that give a bad name to the glorious pen profession. These are defamers without borders. They can pick on anybody and on everybody. Their newsroom operates nonstop and does not go on vacation or holidays. They pick their targets randomly. The non-politician is not spared so also is the politician. Some of you seated here – professional journalists – have also been victims of this defamers. In all these, society suffers the brunt while the emergency journalist disappears to thin air.

This brand of ‘journalism’ came with the wave of the internet and was not available at the time of the enactment of the Criminal Code Act (applicable in the Southern part of Nigeria) and the Penal Code Act (applicable in the Northern part of Nigeria). Thus, something needed to be done to check the menace of fake news and deliberate defamation of people’s character on the internet.

This perhaps is where the idea of the cybercrime law was conceived by the National Assembly of Nigeria. Ladies and Gentlemen, a law which seeks to prevent mischief makers from doing damage to families and doing damage to society at large will find support in the court of law if such law is presented for judicial scrutiny and interpretation. The law is interested and deeply concerned about societal cohesion and will not allow a handful of people to wreak havoc to society.

Laws in most cases, are made to check mischief in society. Thus, since every decent person in society is now at the danger of being defamed through the internet under the guise of freedom of expression, a law which sets out to curb this menace – such as the Cybercrimes Act – if properly directed at mischief makers, carriers of fake news and destroyers of societal fabrics will also receive the approval of the courts in this country.

Afterall, the real journalists are not the ones who carry fake news.  The real journalists are the ones who report stories based of facts, based on thorough investigation and based on truth, devoid of fabrications. For the professional journalist, fabrication of stories is an anathema.

While I agree with many that some provisions of the Cybercrimes Act are a bit nebulous and capable of affecting several persons, I also posit that something needed to be done to insulate society from the audacious wave of fake news and mindless defamation of people’s character. It was too rampant and the legislature could not have been rightly expected to shy away from the reality. Fake accounts were created for the sole purpose of maligning people. The worst periods were the political seasons when perceived opponents of some persons needed to be brought down by all means. No decent society could have folded its arms in the midst of such menacing wave.

But what do you do at this point as journalists and bloggers?

In legal circles, there is what is called ‘’the law as it is’’ and, ‘’the law as it ought to be.’’ One deals with the present state of the law and the other deals with yearnings, aspirations and expectations of what should be. While there may be need to revisit the provisions of the Cybercrimes Act as they affect or are likely to affect the journalism profession, the reality as at today is that, there is a law (the Cybercrimes Act) which prohibits the abuse of the cyberspace by anybody, including journalists and bloggers. The consequences are serious and should therefore be avoided.

Journalists have played key roles in society and have risen to prominence and have clinched elective offices in several States of the Federation of Nigeria. Olosegun Osoba was the man who first discovered that an abandoned corpse that was just by the roadside in the outskirt of Lagos was the corpse of the first Prime Minster of Nigeria, Sir Abubakar Tafawa, six days after the first military coup of January, 1966. He was a journalist with Daily Times then. Osoba was a journalist for many years and came to prominence through the pen profession. He later contested election and became the Governor of Ogun State. Smart Adeyemi is in the Senate today because he came to prominence through the journalism profession.

One of your elders in the pen profession, Eats of the Niger is Mr. Moses Ekpo (the current Deputy Governor of Akwa Ibom State) who came to prominence through the pen profession. There are many possibilities and you too can rise to prominence through this same profession. But all these possibilities available to you as a journalist could be dashed, should you be unfortunately convicted for actions contrary to the Cybercrimes Act. Who knows, you may not be lucky to have a Presidential pardon. This then calls circumspection and constant re-examination of the tenets of journalism which you all learnt in schools or which you have learnt in the course of your practice of the noble pen profession. Ask yourself questions before you publish. True journalism must be anchored on truth and accuracy. It must have the attributes of independence, fairness and impartiality, accountability and humanity.

Other relevant sections of the Cybercrimes Act

Section 23 of the Cybercrimes Act prohibits the publication of child pornography on the internet or any social media space. It also prohibits distribution or transmission of child pornography.  At an unfortunate time like now in the history of our country when children of a certain school in a certain highbrow part of the country were caught on camera doing the unthinkable at their ages, there is always the temptation for the blogger to draw traffic to his page by publishing the so-called trending item. Be careful because, legal consequence of such publication or distribution is ‘’a fine of not more than 20 Million Naira or 10 years imprisonment or both.’’ (see section 23 (1) (i).

Section 25 – There is now the tendency for some bloggers to make use of a name registered by another person. Such bloggers use the registered name to commit infractions. By section 25 of the Act, this action is described as ‘’cybersquatting.’’ The section provides that any person who intentionally takes or makes us of a name, business name, trademark, domain name or other words or phrases registered, owned or in use by another person or belonging to Government without authority or right and uses the name for the purpose of interfering with the use by the lawful owner, commits an offence under the Act and shall be liable on conviction to 2 years imprisonment or a fine of 5 Million Naira or both fine and imprisonment. Journalists and bloggers should be mindful of this.

Section 26 – This section prohibits the publication and distribution of racist or xenophobic materials to the public. The internet is a public space. The legal consequence is 5 years imprisonment or fine of 10 Million Naira or both. The journalist and the blogger should please take note of this.

Note also that offences under this Act can only be tried at the Federal High Court (see Section 50).

Other related infractions

Aside from the Cybercrimes Act, there are other laws bordering on press infractions. A typical example is Section 382 of the Criminal Code, Laws of Akwa Ibom State, 2000 which provides for criminal defamation of character and prohibits the publication of ‘’any material which is likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule or likely to damage any person in his profession or trade by injuring his reputation.’’ This section can be activated against anybody. By Section 384 of the Law, ‘’any person who publishes any defamatory matter knowing it to be false is liable to imprisonment for two years.’’

But note that by Section 386 of the same Law ‘’the publication of defamatory matter is not an offence if the publication is, at the time it is made, for public benefit, and if the defamatory matter is true.’’ In law, truth is a complete defence against a charge of defamation. As a journalist, if your story is true then the law has you covered. It does not matter how the person against whom the story is made feels. What matters to the law is the fact that the story is true, factual and verifiable.

There is also the Defamation Law of Lagos State which prohibits the publication of slanderous materials against persons and institutions. By Section 8 of the Law, any publication which causes or is likely to cause serious harm to the reputation of another shall constitute an offence.

Defamation has been defined as: ‘’Any written or printed article published of, and concerning a person without lawful justification or excuse and tending to expose him to public contempt, scorn, obloquy, ridicule, shame or disgrace or intending to induce an evil opinion of him in the minds of right-thinking persons, or injure him in his profession, occupation or trade. The words used need not necessarily impute actual disgraceful conduct on the person; it is sufficient if they render him contemptible and ridiculous.’’[6]

But note that as stated earlier, the journalist is protected by law if his publication is anchored on truth or honest opinion. Note also that a person can be charged to court for criminal defamation or civil defamation of character or for both. If the criminal option is taken, the consequence in the event of conviction is that the person will be sent to prison to serve terms of imprisonment. If the civil option is taken, the person will be made to pay damages to the victim of his publication and in most cases, he will be asked to make a retraction of the story or publish an apology.

The journalist and blogger can indeed be guilty of the crime and tort of defamation and should thus be careful.

Recommendations /Way Forward

1. Let me start by thanking the Ministry of Information and Strategy, Akwa Ibom State under the leadership of Comrade Ini Ememobong (himself a lawyer and linguist) for deeming it necessary to organise this seminar with a view to blending journalism with law. I recommend that more of this should be organised even in the nearest future.
2. The Nigerian Union of Journalists (NUJ) as the umbrella body for journalists in Nigeria should deem it necessary to discuss with the leadership of the Nigerian Bar Association for synergy and regular interaction on issues of law.

1. Moreover, NUJ should do more to defend the interest of its members and should also do more to disassociate itself from persons who attempt to give the noble profession a bad name. NUJ should identify with its members who run into trouble waters in the course of the practice of their profession. When Mamman Vatsa was implicated in the alleged coup of 1985 against the Government of Ibrahim Babangida, he was tried and sentenced to death by a panel that was constituted by Domkat Bali, then Chief of Army Staff. Nigerians were afraid and confused whether Babangida would indeed allow the execution of his bosom friend. In the midst of that fear, three writers – Wole Soyinka, Chinua Achebe and John Pepper Clark – braved the odds and paid a visit to Babangida at Dodan Barracks. They met with him and pleaded that their fellow writer, Mamman Vatsa should not be killed. Babangida listened to them and assured them that he would do his best in the circumstance. When these gentlemen left the barracks, Mamman was nonetheless killed along with others. Why do I bring this story here? Mamman was killed but the show of comradeship from the trio of Achebe, Soyinka and Clark for a colleague at such inauspicious time, is something that everyone should learn from. Your job is one with hazards. There is need for your association to identify with anyone of you who runs into stormy waters. Above all, members should be reminded of the ethos of the profession.
2. No profession can keep a good if it has no mechanism for the sanctioning of erring members. NUJ should make a critical assessment of its disciplinary measures and properly apply them to keep the image of the profession clean.
3. There should be training and re-training of journalists.
4. Journalists in government should not forget their colleagues who are not in government. They should call for meetings for cross-fertilization of ideas and should also sponsor seminars and conferences to serve as refresher courses for members of the profession.
5. Journalists should be alive to their responsibilities in society. I have the feeling that section 24 and other worrisome laws which have negatively impacted the work of journalists or which have put fear in the minds of journalists and bloggers, where not thoroughly analysed and exposed by the press while the bill was still in the laboratory of the National Assembly. I must commend the press for the level of awareness it created in the just concluded debates for an amendment of the Electoral Act. You need to continue in this beautiful work. If you had done so on the Cybercrimes Act, some provisions would perhaps not have made their way to the last stage of the legislative process.
6. Before you publish online, I suggest that you apply this formula: assuming I was working for an established and reputable media house with an editorial board, would the board have approved my article for publication? If you are convinced that your article would have been approved, go ahead and publish it. If you are not so convinced, then apply caution and possibly edit your work or re-do the story all over again before you launch out to the public space.
7. By Section 39 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the right to freedom of expression and the press is guaranteed and no one can take this away without an affront to the law. By sub section 2 of section 39, it has been provided that ‘’every person shall be entitled to own, establish and operate any medium for the dissemination of information, ideas and opinions.’’ It therefore goes without argument that the fundamental law of the land has got you covered (journalists and bloggers) and no one can stop you from practicing your chosen profession without falling into trouble with the Constitution. However, in the same Constitution (section 45) it has been stated that fundamental rights can be restricted or abridged ‘’in the interest of defence, security, public safety, public order, public morality or public health or for the purpose of protecting the rights and freedoms of other persons.’’ This is where the Cybercrimes Act can rightly take legitimacy.

10. I admonish you to stick to the tenets of the journalism profession, keep the streams of journalism pure, and anchor your reportage on truth and veracity at all times.

Conclusion:

When President Richard Nixon was sworn in as the 37^th President of the United States of America in 1969 he never knew that he will leave office before the expiration of his tenure. The Watergate Scandal pushed him out of office. This monumental scandal was investigated and brought to international limelight by two journalists from the New York Times. The report was factual and showed clearly that the burgling of the office of the opposition party at the Watergate Plaza was authorised by the President. America could not accept that a sitting President would authorize such a thing on the American soil. On August 9, 1974, President Nixon resigned for fear of being impeached and handed over to Vice President Gerald Ford. This unprecedented occurrence was exposed by members of the pen profession.

The pen profession has maintained its nobility for hundreds of years. It is the fourth estate of the realm. It is the nightmare of dictators. It is the watchdog of society. But your work must at all times be done professionally and in true fidelity to the tenets of journalism. The journalist and the blogger must be ready to be regulated by laws but you must also be ready to challenge and expose all such bills which have the propensity of unduly restricting free speech in society and free journalism. While the journalist truly desires to operate in the freest of spaces available, society also expects that the practice of journalism must be done with the best interest of society at heart. The age long stream of pure journalism should never be allowed to be adulterated by persons who have no business being in this noble profession.

Thank you and God bless.

Ekemini Udim is a Barrister, Solicitor, Senior Partner of Justice Chambers. He is the author of Practice Guide on No Case Submission, Principles of Garnishee Proceedings in Nigeria, Trial Within Trial in Criminal Proceedings, Principles of Bail in Nigeria and, Practical Approach to Effective Cross-Examination. He is a regular Commentator on Radio, TV and other media platforms. He is a Co-Host on Legally Speaking (aired on Planet 101.1 FM every Friday from 5 – 6 pm) and, Host of You & The Law (a platform hosted on YouTube for regular discussion on legal issues in the breaking news and other issues of law affecting everyday living). Ekemini is reachable on 08185001073 and via email at ekeminiudimforjustice@gmail.com

[1] Joseph Aghatise ‘’Cybercrime Definition’’ https://www.researchgate.net/publication/265350281_cybercrime_definition  (accessed on April 28, 2022). See also: https://dictionary.cambridge.org which defines cybercrime as ‘’an illegal activity that is carried out with the use of the internet.’’ The common denominator in most definitions of cybercrime is the making of reference to the internet and computer. We all know that the computer and the internet are like inseparable twins in today’s world. By the Evidence Act, 2011, computer includes phones and allied devices.

[2] www.collinsdictionary.com/dictionary/english/the-press (accessed on April 28, 2022).

[3] See in particular Section 24 (b) of the Act.

[4] See Premium Times of October 16, 2020 ‘’Reject Cybercrime Law, CPJ Tells Nigerian Online News Organisations.’’

[5] See: https://www.dw.com/en/cybercrime-legislation-is-posing-a-threat-to-press-freedom/a-19292740 (accessed on May 1, 2022)

[6] William F. Swindler, Problems of Law in Journalism (Westport, Conn., Greenwood Press, 1955) 112.