By Dr Austin Maho
Regulating freedom of expression is deeply divisive and contentious in a democracy. This is not surprising, because the very essence of any democracy is freedom of expression and of the press. You cannot have true democracy without freedom of expression. It is for this reason that freedom of expression and of the press are constitutionally guaranteed in democracies.
People must be able to talk freely via any communication channel of their choice in the expression of their views and opinions and to receive information without let or hindrance for the purpose of being active participants in the democratic process.
These communication channels would include but not limited to all traditional media forms including the digital media. Freedom of expression is a sine qua non in a democracy, without it there is really no democracy.
In the United States for instance, the very first amendment to the US constitution protects freedom of expression: “congress shall make no law abridging freedom of expression or of the press.
Section 39, sub sections (1) and (2) of the 1999 constitution of the Federal Republic of Nigeria as amended provides for freedom of expression and of the press thus:
(1) Every person shall be entitled to freedom of expression, including freedom to hold and to receive and impart ideas and information without interference.
(2) Without prejudice to the generality of subsection (1) of this section, every person shall be entitled to own, establish and operate any medium for the dissemination of information, ideas and opinion: provided that no person, other than the government of the federation or of a state or any other person or body authorised by the president, shall own, establish or operate a television or wireless broadcast station for any purpose whatsoever.
However sections 39 must be read together with sections 45 which places limits to the freedoms provided for in section 39. The section legalises any law that is reasonably justifiable in a democratic society-in the interest of defence, public order, public morality or public health, or for the purpose of protecting the rights and freedom of other persons. It therefore holds that any law that is reasonably justifiable in a democracy for the purposes specified above is admissible irrespective of the provisions of section 39.
There are existing legislations in our statutes which copiously regulates freedom of expression for the reasons spelt out in section 45 of the constitution. For our purpose we will dwell on the law of defamation as provided for in the Criminal Code and the Cybercrimes Act 2015.
Criminal Code and defamation
Chapter 33 of the Criminal Code provides for defamation. Sections, 373, 375 and 376 establishes and defines the crime of defamation including penalties.
Specifically, Section 373 should be of interest because it defines defamatory matter as that which expressly provides for all forms of libel and slander. Defamatory matter is matter 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 an injury to his reputation.
Note also that such matter may he expressed in spoken words or in any audible sounds, or in words legibly marked on any substance whatever, or by any sign or object signifying such matter otherwise than by words, and may be expressed either directly or by insinuation or irony. It is immaterial whether at the time of the publication of the defamatory matter; the person concerning whom such matter is published is living or dead.
Arguably the law on defamation covers the activities of the digital media.
Section 375, states that Subject to the provisions of this Chapter, any person who publishes any defamatory matter is guilty of a misdemeanour, and is liable to imprisonment for one year; and any person who publishes any defamatory matter knowing it to be false is liable to imprisonment for two years.
Section 376. Any person who publishes, or threatens to publish, or offers to abstain from publishing, or offers to prevent the publication of defamatory matter, with intent to extort money or other property, or with intent to induce any person to give, confer, procure, or attempt to procure, to, upon, or for, any person, any property or benefit of any kind is guilty of a felony, and is liable to imprisonment for seven years.
In the digital media world it is common for users to ridicule, harass or insult those who disagree with their point of view. But take heed, if you damage someone’s reputation by trying to embarrass them in an online forum, you could be held liable under the law of defamation as provided for in Chapter 33 of the criminal code. Although there are few cases to serve as reference, this however does not diminish the fact that an individual is liable for what he or she does online. Therefore, libel laws apply to the Internet the same way they do to newspapers and TV stations this is because the same technology that gives you the power to share your opinion with thousands of people also qualifies you to be a defendant in a lawsuit.
Consequently, if you want to produce materials for internet broadcast, then you may have to follow strict journalistic rules. You must consider the nature of the information, and the extent to which the subject-matter is a matter of public concern, the source of the information, the steps taken to verify the information, the status of the information, the urgency of the matter, the tone of the report, the circumstances of the publication and make sure that what you disseminate is not false, contentious or litigious.
Cybercrimes Act 2015
Similarly the Cybercrimes Act 2015 which was signed into law by former president Jonathan on May 15th 2015 provides copiously for offensive and annoying statements on the internet.
Sections 24 in part 111 of the Act talks about Cyber-stalking and is hereby quoted verbatim:
“Any person who knowingly or intentionally sends a message or other matter by means of computer systems or network that:
(a) is grossly offensive, pornography or of an incident, obscene or menacing in character or causes any such message or matter to be sent; or
(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”
An examination of this provision in the Cybercrimes Act together with the provisions of chapter 33 of the criminal code shows that defamation in any guise including Cyber-stalking is already a criminal offense in Nigeria.
There is no legal uncertainty about the liability of individual users who employ digital platforms to defame others. The Courts have held that since the internet has made worldwide direct communication easy by a click of the button, individual users are equally in control of ensuring that the information they disseminate on the internet are authentic, accurate, true and reliable. Therefore, as a writer has said, “in terms of libel and defamation, the Net is not a new world of freedom ….the reality is that libel and defamation laws are enforceable in the virtual world just like they are in the real world”. You may want to say that you just forwarded the message, the bad news is that a “re-publisher is just as liable as the original publisher”.
In September 2015 a Federal High Court in Lagos presided over by Justice Mohammed Yunusa ordered the prison remand of one Chris Nwandu, a blogger for allegedly aiding another blogger, SeunOloketuyi, who was facing charges of defamation and cybercrime. (You may want to read up on it to get the details of the case).
In a similar vain the Economic and Financial Crimes Commission, EFCC recently arrested Mr. AbubakarSidiqUsman, a blogger, for offences bordering on cyber stalking.
The suspect who is the publisher of Abusidiqu.com was picked up in his Abuja home on Monday August 8, 2016 by operatives of the EFCC and was interrogated for alleged offence which contravenes section 24 of the Cyber Crimes Act.
The arrest of the popular blogger is viewed by many to signpost a renewed crackdown on the online media by the government of President MohammaduBuhari.
The question in the minds of many observers, especially journalists, bloggers and online news sites is the implication of this provision of the Cyber Crimes Act, its definition of “Cyberstalking” and its implication on the constitutionally guaranteed freedom of expression and the freedom of the press as provided for in section 39 of the 1999 constitution as amended. This is because stories published in mainstream newspapers and broadcasted through the meduim’s online portal or any other online platform and is deemed “offensive”, “obstructive” “insulting” or “annoying” is actionable under the provision of this Act. The irony is that even an otherwise factual story can be deemed as “annoying”, “insulting” “obstructive” or “offensive”. Justification which is considered an absolute defence against libel would be hard pressed under this broad categorisation of “cyberstalking” and may not avail an accused person under this Act.
Conclusion
In an age of online journalism and extensive use of the social media in the redistribution of news, this provisions of the Act has immense implication for freedom of expression and the freedom of the press. However, it must be reiterated that online news platforms, bloggers and social media users have shown scant regards for objectivity, truth and balance in the way news is padded and peddled. The Internet has been used to vilify and defame; disseminating unverifiable information, and often causing injury to the reputation and image of individuals and organisations. The law recognises the rights of Everyone to his reputation for as Shakeaspear said: “Good name in man or woman is the immediate jewel of their soul. He who steals from me steals nothing but he who filches from me my good name robs me of all that which not enriches him but makes me poorer indeed”
Finally, it must be said that section 24 of the Cyber Crimes Act has grave implication for freedom of expression and information and consequently an afront on section 39 of the 1999 constitution a concern which will be determined by judicial pronouncements on the matter in the days ahead.
The writer, Maho is MD/CEO at FOI Media Services and resource person at International Institute of Journalism, Abuja
NOTE: This article was first published in the Nigerian Pilot of August 11, 2016
