Cybercrime and Punishment

There’s a new trend in our land which many are complaining about but which I doubt they are doing much to address. It is the use of the Cybercrimes Act to file criminal charges for alleged defamation where the civil laws should ordinarily suffice. First, what is defamation of character? I will adopt this definition by AllLaw. com: “Defamation is typically defined as a false statement someone makes about you, which they publish as a statement of fact, and which harms your personal and/or professional reputation or causes you other damages, including financial loss and emotional distress.” This is obviously to protect innocent people from reckless and malicious statements and publications.

In the Cybercrimes Act, passed under the Jonathan administration in 2015, defamation is what is classified as “cyberstalking” under section 24 (1)(b) which says it is a crime for “any person to knowingly or intentionally send a message or other matter by means of computer systems or networks 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.” The punishment is a fine or maximum three years in jail, or both. The key phrase is “knowingly or intentionally”, unlike libel where intention is irrelevant.

Essentially, with the Cybercrimes Act, you can go to jail for posting a defamatory statement online, whereas it is libel if you write the same thing in a newspaper and slander if you say it on TV/ radio. That means for a defamatory online post, you could be arrested, detained and charged to court by the police and jailed by a judge. Yet, the only difference is that one is printed (libel) or said (slander) while the other is online (cyberstalking). That is, while you can be sued for billions of naira in a defamation suit because it is civil, you can go to jail for cyberstalking — and it doesn’t matter if the offensive words are the same! You would agree with me that there is something inconsistent in this.

Today, I am joining the campaign for the decriminalisation of libel. I propose that defamation should be treated as defamation, whether it is analogue or digital. The UN Human Rights Committee has been campaigning for the decriminalisation of libel for over two decades. Ironically, a country like Canada still has laws on criminal and blasphemous libel, even if hardly enforced. The UNESCO recently reported that more than 160 countries still criminalise libel. It is dead as a federal law in the US but some states still retain it. Many countries have, however, abolished it while it has become obsolete in a country like the UK which has not prosecuted any criminal libel case since the 1970s.

I must necessarily accept here that sections of my primary constituency — the media — do not paint themselves in glory in matters of defamation, but that has nothing to do with my position. For one, journalists are not above the law. Nobody has the right to defame people without evidence. The only absolute defence in cases of defamation is truth. If what you have published is the truth and you have the evidence to defend yourself in a court of law, you are good. May I also say here that since newspapers and broadcast outfits have online presence, they are liable under the Cybercrimes Act as well. That is why we just have to take our professional responsibilities as seriously as they demand.

Because of the legal gulf between the seriousness with which the courts treat libel and cyberstalking cases in Nigeria, people would rather go through the Cybercrimes Act than pursue a civil suit. There is frustration with the agonisingly slow pace of libel cases in the courts. The satisfaction that comes with the Cybercrimes Act is that the offending party will, at least, be swiftly arrested and detained. Apologies and retractions may follow and the offended party could get some relief. Libel cases, on the other hand, can sleep in a court for 20 years with no head or tail. It is said that justice delayed is justice denied. The slow pace of libel cases incentivises miscreants to keep defaming people.

I, therefore, understand why aggrieved Nigerians would prefer the Cybercrimes Act. Recently, one of those who tried to defame Nathaniel Bassey, the gospel music minister, apologised and retracted his accusation when the police confronted him with the Cybercrimes Act. If it was a civil case, the apology might still be hanging somewhere. The social media easily accommodates mischief makers — some are even paid to defame people. They are especially cruel because they think they are unreachable, unlike a conventional newspaper that has a physical address, phone numbers and known names. That is why some people think the Cybercrimes Act serves the mischief makers right.

Before I proceed, let me state clearly — as clearly as I can — that my support for the decriminalisation of defamation is not an endorsement of anyone hiding behind freedom of speech and a smart phone to defame people. Cyberthugs and mobsters think they can hide behind avatars to say whatever they like without repercussions. People’s lives and businesses are being sadistically ruined by malicious posts. They think they can get away with anything. When they are called upon to answer their father’s name, they start blabbing about free speech. Tell me one country in the world where you can defame people without facing the consequences because of “freedom of speech”.

And, yes, I am a victim too. I am regularly savaged with lies on social media. It reached a climax with the dirty politics around the 2023 polls. The pick of the pack of lies was that President Tinubu gave me N500 million. It was circulated by a journalist I had known since 1994. I was his desk editor at THISDAY in 1998. He didn’t know my colleague was in one of the WhatsApp groups where he shared it. I usually laugh at these lies and attacks but this was someone I called a friend. I decided to ask him why he did it and he cheekily replied: “Can’t you take a joke?” If I had decided to keep him busy with the Cybercrimes Act, he would have been crying and alleging ethnic or political persecution.

Regardless, I still consider matters of this nature as purely civil and not criminal. Actually, I have no problems with the Cybercrimes Act itself. It was natural and necessary: society was evolving and we needed to modernise our laws in line with the realities of tech-enabled crimes. The Cybercrimes Act was well conceived. It covers a comprehensive list of criminal online activities: hacking, denial-ofservice attacks, phishing, malware, identity theft, electronic theft, distribution, sale or offering for sale of hardware, software or other tools used to commit cybercrime, etc. My only objection is the criminalisation of defamation and I believe it should be expunged. I will now defend my stand.

One — as I have already pointed out — I think defamation should be defamation, no matter the platform used to perpetrate it. What is civil in print or broadcast should not become criminal on the internet. I am proposing commonsense here. There is the need for consistency in punishing defamation. If you killed someone unlawfully, it shouldn’t matter if you used a hunter’s rifle or an AK47 for the crime — it would still be regarded and punished as murder or manslaughter, depending on the circumstances: whether the homicide was premeditated or provoked. After all, armed robbery is a capital offence even if it is an ordinary pen, and not a pistol, that was used in the act.

Two, if we keep saying Nigeria is under-policed, maybe we should stop engaging the police in matters that are not core to their duties. It is not the job of the police to protect the reputation of an individual, as the Cybercrimes Act currently makes it. Their job is to protect lives and property. Nigeria is battling with security issues in every region and every geo-political zone today, but many of our police men and women are busy with duties such as VIP protection, settling disputes between mechanics and car owners, and arresting a tailor because what a customer ordered is different from what she got. Meanwhile, robbers, kidnappers and terrorists are making life miserable for Nigerians.

Three, there are more serious cybercrimes — compared to the defamation of an individual — that the police should be made to tackle. People spreading ethnic and religious bile online are a threat to the peace. They can set the society on fire. This cannot fall under free speech. We cannot hope to live in a peaceful and orderly society when miscreants are using falsehood and conjectures to demonise some Nigerians simply because of their region or religion. If someone issues a death threat online, that is also worth pursuing under the Cybercrimes Act. It is about life and death, and the Nigerian state has the responsibility to protect the lives of its citizens. But defamation? Oh, please!

What shall we do then? Shall we continue in defamation that free speech may abound? God forbid. I would propose two things. One, advocacy should be focused on decriminalising defamation by expunging section 24 (1)(b) of the Cybercrimes Act, 2015, and other provisions on “criminal libel” (which government officials use to protect themselves from public scrutiny). Let us retain defamation as a purely civil matter. Two — and this is a critical judicial reform Nigeria needs — the courts have to start treating defamation cases as important. Cases shouldn’t go on endlessly. The judiciary must help sanitise our society by protecting people’s reputations from being unfairly maligned.

All said and done, I would like to appeal to social media users to think about their incendiary and hurtful words before posting. There is a mad race to the bottom on the internet — who can say the vilest words and plant the most outrageous rumours in order to get engagement? — but they should put themselves in the position of their victims. As Rotarians would say, is it fair to all concerned? How on earth would you say a couple’s son was fathered by another man without proof? It is all a game to you, right? Some are obviously hustling for Elon Musk’s dollars by spreading falsehood and mischief. Nevertheless, I maintain that defamation should be treated as a civil offence in our laws.