Africa

The crime of cyberstalking vs freedom of speech; separating the law from the lies.

About a week ago when I petitioned the National Security Adviser on behalf of our client citing Cyberstalking as a crime contained in our extant laws, the security agents were brought alive by this revelation. Some arrests not even connected to the said petition were made. Since then some persons have gone to town with the yarn that arresting persons for Cyberstalking is a systematic infringement on the Right to Freedom of Expression.

Well, they are those whose stock in trade is to put a political colouration to everything; I am not that skilled. But as one of the first legal practitioners, if not the very first, who petitioned the National Security Adviser on the offence of the Cyberstalking and pointing public consciousness to this crime, I think I owe the public some sort of adumbration on this issue.

Here it is.

I have always maintained that the problem we have in Nigeria is not a dearth or lack of laws and policies. No. We have very good laws. But we lack a system that is capable of executing or enforcing these laws. A couple of months ago there was hoopla about a proposed social media bill. Apart from some ungodly aspects of that bill we didn’t even need it, not because there were no offences in our cyberspace to curtail but because we already had a law to deal with cyber offences; the Cybercrime (Prohibition, Prevention, etc.) Act 2015.

“The Act provides an effective, unified and comprehensive legal, regulatory and institutional framework for the prohibition, prevention, detection, prosecution and punishment of cybercrimes in Nigeria. This act also ensures the protection of critical national information infrastructure, and promotes cybersecurity and the protection of computer systems and networks, electronic communications, data and computer programs, intellectual property and privacy rights.” The intendment of this piece is not to do a general analysis of this Act; that is already the business of a book I am working on. Now, let’s get to the section that provides for the crime of Cyberstalking.

Section 24 of THE CYBERCRIMES (PROHIBITION, PREVENTION, ETC) ACT, 2015 defines, describes and penalizes a crime known as Cyberstalking. This is what the said section 24 says:
“Any person who knowingly or intentionally sends a message or other matter by means of computer systems or network that –‐
… (b) 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 3 years or to both such fine and imprisonment.

(2) Any person who knowingly or intentionally transmits or causes the transmission of any communication through a computer system or network — … (c) containing any threat to harm the property or REPUTATION OF THE ADDRESSEE or of another or the reputation of a deceased person or any threat to accuse… commits an offence under this Act and shall be liable on conviction– … (ii) in the case of paragraph (c) … of this subsection, to imprisonment for a term of 5 years and/or a minimum fine of N15, 000,000.00 “.

Reading the provisions of section 24 of the Cybercrimes Act, one will wonder how enforcing this law infringes the Fundamental Human Right of Freedom of Expression encapsulated in section 39 of the 1999 Constitution as amended that says: “(1) Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.”

Freedom of Expression or Speech is not the same thing as “… knowingly or intentionally send(ing) a message or other matter by means of computer systems or network that –‐
… (b) … (is) false, for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, ill will or needless anxiety to another …
(2) … knowingly or intentionally transmit(ing) or caus(ing) the transmission of any communication through a computer system or network — … (c) containing any threat to harm the property or REPUTATION OF THE ADDRESSEE or of another or the reputation of a deceased person …”

You can criticize. You can rant. You can hold an opinion. You can blog. You can receive and publish intel from a source without revealing your source. You can damage anybody’s reputation with THE TRUTH. I repeat with the truth. But not with lies.

But when you
“… knowingly or intentionally send (publish, blog, share, update, hashtag, twit, vblog, etc) a message (article, write up, audio, video, etc) or other matter by means of computer systems or network that –‐
… (b) (YOU) know 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; (THEN YOU) commit an offence(CYBERSTALKING) under this Act (CYBERCRIMES 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 3 years or to both such fine and imprisonment.

(2) (IF YOU) knowingly or intentionally transmit or cause the transmission of any communication through a computer system or network — … (c) containing any threat to harm the property or REPUTATION OF THE ADDRESSEE or of another … commits an offence(CYBERRSTALKING) under this Act(CYBERCRIMES ACT) and shall be liable on conviction– … (ii) in the case of paragraph (c) … of this subsection, to imprisonment for a term of 5 years and/or a minimum fine of N15, 000,000.00 “.

It is this simple. The offence of Cyberstalking is not an infringement of the Right to Freedom of Expression or Speech unless you are saying that to propagate falsehood or tell fabricated lies on social media is what you understand as Freedom of Expression. Even if that is your understanding, that is not the understanding of the law.

Finally, let me clear two points. One. Be careful of what you share on social media or your blog. You can be arrested and prosecuted for Cyberstalking for just sharing even if you are not the one that wrote the original post or article. By sharing you are liable for the same offence as the original author.

Two. Recently a blogger was arrested for Cyberstalking by the EFCC and some people were asking whether the EFCC has the powers to arrest for this offence. Though I don’t know the details of the activities he engaged in that warranted his arrest for Cyberstalking but the answer is yes, the EFCC has the powers to arrest under the Cybercrimes Act generally and for Cyberstalking.

Over 70% of cybercrimes are financial in nature. A casual scan of the Act will show that most of the offences provided for are financial in nature. Section 42 of the Act and the First Schedule established the Cybercrimes Advisory Council and listed EFCC as member respectively.

It is possible that someone could
“… knowingly or intentionally send (publish, blog, share, update, hashtag, twit, vblog, etc) a message (article, write up, audio, video, etc) or other matter [OF A FINANCIAL NATURE] by means of computer systems or network that –‐
… (b) 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…”
Thereby empowering the EFCC to arrest and prosecute under the EFCC Act and the Cybercrimes Act.

Freedom of Speech is sacrosanct, no one should stand by and watch it infringed. But Freedom of Speech is not the same thing as freedom to fabricate lies and disseminate falsehood. Those who fight to uphold the Right to Freedom of Speech should also be seen fighting to defeat those who fabricate lies and propagate falsehood. We cannot enjoy Freedom of Speech when falsehood is allowed to reign supreme.

First Baba Isa (FBI) is a Legal Practitioner and writes from Abuja.
@firstbabaisa
07037162029

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