Cybercrime refers to criminal activities carried out in cyberspace, including hacking, identity theft, online fraud, and cyberbullying. It poses a significant threat to individuals, businesses, and governments worldwide, leading to financial losses, privacy breaches, and disruptions in digital operations.
The Cybercrime Act in Nigeria, enacted in 2015 to combat online criminal activities, is a crucial piece of legislation in the digital age. While designed to protect individuals and organisations from cyber threats, there is growing concern that the provisions of the Act may be wielded as a tool to target journalists.
Originally named the Cybercrimes (Prohibition, Prevention, etc) Act, 2015, it was amended on February 28, 2024. According to the Act, its objectives include, “(a) provide an effective and unified legal, regulatory and institutional framework for the prohibition, prevention, detection, prosecution and punishment of cybercrimes in Nigeria; (b) ensure the protection of critical national information infrastructure; and (c) promote cyber security and the protection of computer systems and networks, electronic communications, data and computer programs, intellectual property and privacy rights.”
However, the Act is perceived to be a controversial law that grants the Nigerian government expansive authority to regulate perceived online crimes. The legislation has been criticised by Amnesty International and other human rights groups for its potential to target media professionals and infringe upon freedom of speech.
Critics of the Act raise concerns about its potential misuse as a tool to suppress freedom of the press, particularly targeting journalists.
The broad and sometimes vague language of the Act, coupled with stringent penalties for offences related to online activities, has led to fears that it could be selectively applied to intimidate and persecute journalists who are critical of the government or powerful entities.
According to the critics, the Act’s provisions, intended to address cyber threats, may inadvertently be used to stifle investigative journalism, silence dissenting voices, and curtail freedom of expression in the digital space.
Before now, journalists in Nigeria had faced threats, arrests, and harassment in connection with their online activities. However, recent incidents have been attributed to the enforcement of the Cybercrime Act.
For instance, vague definitions of offences such as “cyberstalking” and “cyberbullying” under the Act have been cited as potential tools for authorities to target journalists engaging in legitimate journalistic activities online.
Cases of concern
Findings show that about 20 journalists and media outlets were attacked during the general elections in February and March 2023. According to Reporters Without Borders, Nigeria ranks 112 out of 180 countries for press freedom, indicating a low level of press freedom. The country was ranked 123 in 2023.
RWB stated, “Nigeria is one of West Africa’s most dangerous and difficult countries for journalists, who are regularly monitored, attacked and arbitrarily arrested, as was the case during the 2023 elections.
The level of governmental interference in the news media is significant. It can involve pressure, harassment of journalists and media outlets, and even censorship. This interference is even stronger during electoral campaigns.
In recent years, most of West Africa’s violent attacks, arbitrary detentions, and shooting deaths of journalists have taken place in Nigeria, especially during the country’s electoral periods.
Crimes committed against journalists continue to go unpunished, even when the perpetrators are known or apprehended. There is almost no state mechanism for protection.
In fact, the authorities keep journalists under close surveillance and do not hesitate to threaten them.”
On May 4, a journalist with the Foundation for Investigative Journalism, Daniel Ojukwu, was arrested by men of the Nigerian Police Force and detained at the State Criminal Investigation Department, Panti, in Lagos State. He was then moved to the Threat Response Unit of the NPF National Cybercrime Centre in Abuja before he was released 10 days later.
He was said to be facing allegations of violating the Cybercrime Act following a report he did. Before his arrest, Ojukwu wrote a report on how a government official responsible for advancing the United Nations’ Sustainable Development Goals, Adejoke Orelope-Adefulire, allegedly diverted over $106,000 of public funds to a restaurant in Abuja.
The founder of FIJ, Fisayo Soyombo, said the arrest was an abduction because “they never invited him to address concerns about the story in question. Instead, they tracked him, picked him up, and held him.”
Similarly, on May 27, a journalist and publisher of the news platform Precious Eze, was arrested at his residence in Gbagada, Lagos, by officers of the Nigeria Police Force from the Zone 2 Command in Lagos State.
The arrest was believed to have been prompted by a complaint from a well-known businessman and politician.
Recently, on May 28, the Executive Director, reporter, and lawyers of the International Centre for Investigative Reporting were detained by the Nigeria Police Force National Cybercrime Centre after being invited for questioning.
The President of the Nigeria Guild of Editors, Eze Anaba, called on the police authorities to desist from weaponising the Cybercrime Act.
Anaba said, “Journalists are now being terrorised by law enforcement agents using the Cybercrime Act. That is unconstitutional. The constitution says nobody should be detained for more than 24 hours. The police are increasingly violating this provision of the constitution.
“There are bigger issues for law enforcement agents to deal with in this country; they should leave journalists alone. For instance, in the Premium Times story, because the reporter called one of the persons involved to get his reaction, the individual quickly called the police and the police in turn called the reporter.
“What sort of nonsense is that? The police are now using this Cybercrime Act to terrorise people and keep weaponizing it to detain their enemies. That is not what democracy is all about. It is unacceptable.”
Experts’ intervention
Alongside media professionals, legal experts also agree that anti-press freedom is an enabler for corruption, impunity, and incompetence in governance. According to them, it is a gang-up against the collective will, interest, welfare, and security of the people, and therefore anti-democratic.
In an interview with Sunday PUNCH, a human rights lawyer, Kunle Edun, said the provisions of the amended Cybercrime Act, despite being against electronic fraud and other crimes, are a monster to every Nigerian who wishes to express his right to freedom of speech on social media.
He said, “While I applaud some of the provisions, I do have strong reservations regarding a few of them that tend to curtail free press. It is instructive that the previous Section 24(1)(B) of the 2015 Act has been deleted.
It provides that, ‘Any person that knowingly or intentionally sends a message or other matter employing computer systems or networks that he knows to be false, to cause annoyance, inconvenience, danger, instruction, insult, injury, criminal intimidation, hatred, ill will or needless anxiety to another person or causes 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 of a term not more than 3 years or to such both fine and imprisonment.’
Section 24(2)(a) prohibited cyberbullying, threats, and harassment. The ECOWAS Court of Justice in 2018 decided on the constitutionality of sections 24 and 38 of the 2015 Act in Suit No. ECW/CCJ/APP/53/18 and on the 10th of July, 2020, held that section 24 of the 2021 Act violates Articles 9(2) of the African Charter on Human and Peoples’ Rights and 19(3) of the International Covenants on Civil and Political Rights, and consequently ordered the defendant state (Nigeria) to repeal and amend section 24 of the Cybercrime Act, 2015.”
Edun, a former National Publicity Secretary of the Nigerian Bar Association, noted that Sections 13, 14, and 15 of the Act are threats to free speech without interference guaranteed by section 39 of the Constitution.
He said, “The media which is the Fourth Estate of the realm would not be able to effectively perform its Constitutional responsibilities of making government and their officials accountable and responsible with the constant threats of prosecution under the Act, just for reporting the truth. Telling the truth about the high and mighty in society, including government officials, is now a criminal offence.
The Act has now been weaponized against free speech and responsible journalism. Responsible journalism accommodates rejoinders if what is published is not the truth or is slanted. Rejoinders are akin to the right of a fair hearing if published by the same author or the publishing outfit. Sadly, evidence abounds that it is only the high and mighty in society that resort to the use of the Act to go after their perceived enemies.
This way, the security agencies become ready tools for oppression and prosecution against those speaking truth to power. In the event of prosecution, the complainant never shows up in Court to testify.”
Responding to questions on how media professionals can be protected against the arbitrary use of the Act, Edun said it must be amended by either removing sections 13, 14, and 15, or by qualifying the provisions such that cyberstalking, cyberbullying, and cybersquatting can only be punishable offences if the victims are a group or a community.
“Essentially, cyberstalking, cyberbullying, etc., are actually within the class of defamation.
“The Civil Law has already made ample provisions and remedies for them. So, if any individual is offended by the publication of a story which he perceives to be false, he should file an action in libel or defamation against the maker of the alleged defamatory publication. It will be unfair to use taxpayers’ funds and facilities to pursue what is a private action,” the lawyer added.
‘Jurisdiction of Act questionable’
Edun further argued that the exclusive jurisdiction of the Federal High Court to try offences under the Act is questionable, adding that the National Assembly cannot confer jurisdiction on the Federal High Court when it lacks the power to do so, thus making the Act unconstitutional.
He said, “I have checked the powers of the National Assembly to make laws, which is the Exclusive List in the 2nd schedule to the 1999 Constitution. Nowhere is cybercrime listed as one of the items that the National Assembly can make laws on. The same also is not listed in the Concurrent List. It may therefore be argued that the Cybercrimes Act is unconstitutional. Such laws can only be passed by the States’ Houses of Assembly under their powers under the Residual List.
The National Assembly cannot confer jurisdiction on the Federal High Court when it lacks the power to do so. States have the power to enact their own Cybercrimes Law. If this is done, jurisdiction will be expanded to include State High Courts and possibly Magistrate Courts.
The prosecution of cyber crimes cases at the Federal High Courts takes a long time because of the heavy dockets of the courts and the insignificant number of such courts at the various Judicial Divisions.”
Another lawyer, Ayokunmi Alabi, said the Act is supposed to create a solution to both traditional and technology-enabled crimes and enhance cyber-security and privacy rights. He noted that authorities can be mischievous in interpreting the Act to suit different purposes against the powerless.
“That even amounts to a collective undermining and breach of our Fundamental Human Right to Privacy, and Freedom of Thought, Conscience and Religion, as entrenched in S 38 and 37 of the 1999 Constitution of the Federal Republic of Nigeria.
“The enforcement of the Act against journalism and hampering press freedom insults our collective intellects and shows we are yet to be liberated from our oppressive past. It tells us that our authorities do not want to be responsive or accountable and they want to be the sole determiner of the thoughts, conscience, and opinion citizens hold, and this is very bad for national growth and development,” he added.
Alabi explained that nowhere in the Act targets journalism, journalists, or the free flow of information, adding that the Act’s objectives are to strengthen the integrity of digital technologies, thereby helping the free flow of information and aiding press freedom. He said,
“Even when an Act is expressed, therefore, any application, interpretation, or enforcement of this Act that runs inconsistent with these objectives shall to the extent of its inconsistencies be ultra vires, and thus, null and void.
“Therefore, law enforcement agencies clamping down on journalists on the authority of the Act is nothing to write home about. It is trite law that one cannot approbate and reprobate. We cannot on one hand seek to protect our cyberspace and ensure data flow and safety, and on the other hand clamp down on journalists.”
The lawyer added that the misuse of the Cybercrime Act to target journalists represents a significant threat to press freedom and democratic principles in Nigeria.
While the Act is essential for combating cyber threats, its broad provisions and potential for misuse call for scrutiny and possible amendments to safeguard the rights of journalists and ensure that the Act serves its intended purpose without infringing on freedom of speech and expression.
Ensuring a free and fair press is crucial for holding power to account and fostering a transparent and accountable government, which ultimately benefits society as a whole.
