A Legal Analysis of the Legal Regime on Cyberstalking in Nigeria -Odigbo Ugochukwu Sandra

Introduction

The crime of cyberstalking is relatively new to the criminal legal system of Nigeria. It has developed and grown into a very rampant crime as the exposure on the internet constantly places people in positions to be victims. People put private information on the internet for public viewing. The internet has become a part of our everyday lives such that everyone who uses the internet, runs a social media account with any of the numerous social media applications, or simply uses the net for research is exposed to threats from cybercrimes and by extension, cyberstalking.

This article analyses the intricacies of the crime of cyberstalking before and after the enactment of the Cybercrime Act. It goes further to provide insights on cyberstalking being a limitation on the constitutional right to freedom of expression and attempts to define the ingredients of a crime of cyberstalking. Thus, this article is intended to increase awareness of the public of the legal regime relating to cybercrime as it is clear that many internet users neither know the provisions of the law as per cybercrime, nor know that there are legal steps available to them where they are victims. 

Cyberstalking

Cyberstalking has been defined as the repeated use of electronic communications to harass or frighten someone, for example by sending threatening emails. Cyberstalking is the use of the Internet or other electronic means to stalk or harass an individual, group, or organization. It may include false accusations, defamation, slander and libel. It may also include monitoring, identity theft, threats, vandalism, solicitation for sex, or gathering information that may be used to threaten, embarrass or harass.

Cyberstalking is stalking that takes place using electronic devices or the internet. It is the technological harassment directed towards a specific individual. Thus, to get a full picture of the meaning of cyberstalking, the necessity to analyse the meaning of the word “stalking” arises. According to the Cambridge online dictionary, stalking refers to the crime of illegally following and watching someone over a period of time. It was defined as the act or an instance of stalking, or harassing another in an aggressive, often threatening and illegal manner. Stalking is a form of mental assault, in which the perpetrator repeatedly, unwantedly, and disruptively breaks into the life-world of the victim, with whom he has no relationship (or no longer has), with motives that are directly or indirectly traceable to the affective sphere. Moreover, the separated acts that make up the intrusion cannot by themselves cause the mental abuse, but do, taken together (cumulative effect).

The Violation Against Persons Act 2015 made Stalking a crime. It specifically provides in section 17 that a person who stalks another commits an offence and is liable on conviction to a term of imprisonment not exceeding 2 years or to a fine not exceeding N500,000.00 or both. An attempt to even stalk another person attracts a jail term not exceeding one year or a fine not exceeding N200, 000 or both. See Section 17(2) of the Act Section 17(3) makes liable any person who incites another person to commit stalking to imprisonment not more than one year or a fine of N200, 000.00. To also aid a stalker makes the perpetrator an accessory after the fact and such person is liable to a jail term not exceeding a year imprisonment or fine not exceeding N100, 000.00 or both

From these definitions, it is clear that several similarities exist between the traditional meaning of stalking and the more recent crime that is cyberstalking. However, for an act to transform from regular stalking to cyberstalking, it must be internet based i.e. in cyberspace. 

The recognition of cyberstalking as a crime became expedient with the rising access to the internet and the constant exposure by persons to danger by displaying private information to the general public. Thus, the crime of cyberstalking was created to protect persons in their use of the internet from malicious harassment and targeting and to protect users’ privacy.

Before the Cybercrime Act

In the Nigerian legislative clime, the word “cyberstalking” was first used in the Cybercrime Act which was enacted in 2015, long after the advent of the internet which ushered in the crime of cyberstalking. Thus, the Nigerian judiciary, in catering to the crime of cyberstalking, was saddled with the interpretation of pre-existing laws which could be interpreted and stretched to cover the crime of cyberstalking. These laws included the Section 233D of Criminal Code Act and Sections 200, 202 of the Penal Code which prohibited the doing of obscene or indecent acts in public places. 

However, from the nature of these provisions, it is clear that the crime of cyberstalking was not adequately catered to. A lot was left to interpretation and speculation by the judiciary. The lack of a legislation expressly making cyberstalking a crime prevented a lot of victims from approaching the Courts as a lacuna was evident. Several laws provided for several other cybercrimes but none provided for the crime of or the punishment for cyberstalking and the provisions relating to other cybercrimes cannot be applied to cyberstalking as there       are several dissimilarities. Thus, it became increasingly necessary to enact an Act to provide for and criminalize illegal actions being perpetuated on the internet but not adequately covered by the other laws providing for traditional crimes.

Cyberstalking under the Cybercrime (Prohibition and Prevention) Act

The Cybercrime Act [“The Act”] was signed into law on the 15^th of May, 2015. The Act was created for the following purposes:

1. provide an effective and unified legal, regulatory and institutional framework for the prohibition, prevention, detection, prosecution and punishment of cybercrimes in Nigeria; 
2. ensure the protection of critical national information infrastructure; and 
3. promote cyber security and the protection of computer systems and networks, electronic communications, data and computer programs, intellectual property and privacy rights.

In Section 58, cyberstalking is defined as “a course of conduct directed at a specific person that would cause a reasonable person to feel fear”. The Act is designed to operate all through Nigeria and it provides for several cybercrimes including cyberstalking, cyberbullying, child pornography, identity theft, etc. In providing the crime of cyberstalking, the Act provides the following acts as constituting cyberstalking:

“Any person who knowingly or intentionally sends a message or other matter by means of computer systems or network that – 

1. (a) is grossly offensive, pornographic or of an indecent, obscene or menacing character or causes any such message or matter to be so 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:…..

2. Any person who knowingly or intentionally transmits or causes the transmission of any communication through a computer system or network – 

(a) to bully, threaten or harass another person, where such communication places another person in fear of death, violence or bodily harm or to another person; 

(b) containing any threat to kidnap any person or any threat to harm the person of another, any demand or request for a ransom for the release of any kidnapped person, to extort from any person, firm, association or corporation, any money or other thing of value; or 

(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 the addressee or any other person of a crime, to extort from any person, firm, association, or corporation, any money or other thing of value…….”

The Act goes further in subsequent sections and subsections to prescribe punishment ranging from seven million Naira or three years imprisonment to twenty-five million naira or ten years imprisonment.

This section clearly spells out the actions to be considered cyberstalking and allocated punishment to each of the offences. This is a long way from the vagueness that previously existed as per the legal procedures for a crime of cyberstalking. This enactment by the National Assembly was a good and necessary one and clears a lot of ambiguity, making the Nigerian cybercrime laws clearer and more applicable.

Cyberstalking Vis-à-vis the freedom of expression

Section 39 of the constitution provides for the freedom of expression which belongs to every Nigerian citizen. This provision is a reflection of the provisions of the United Nations Declaration of Human Rights and other international declarations and treaties. The provisions of Section 39(1) are reiterated in the case of President, FRN Vs Isa where it is stated as follows:

“Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference….”

Everyone has a right to freedom of opinion and expression; this right shall include freedom to hold opinions without interference and to seek, receive and information and ideas through any media regardless of frontiers either orally, in writing or in print, in the form of art or through any other media of his choice. Freedom of expression is sometimes used synonymously with freedom of speech some countries and it includes an act of seeking, receiving and imparting information or ideas, regardless of the medium used, also refers to the right to speak , write or do anything in order to allow for one’s feeling, opinions and ideas without any restriction. This pertains to the fact that an individual can give his own thoughts on a particular issue on what he thinks or feel about it.

However, the right to freedom of expression is not absolute. Section 39(3) provides the following:

“Nothing in this section shall invalidate any law that is reasonably justifiable in a democratic society –

(a) for the purpose of preventing the disclosure of information received in confidence, maintaining the authority and independence of courts or regulating telephony, wireless broadcasting, television or the exhibition of cinematograph films; or

(b) imposing restrictions upon persons holding office under the Government of the Federation or of a State, members of the armed forces of the Federation or members of the Nigeria Police Force or other Government security services or agencies established by law.”

This provision provides limitations on the right to freedom of expression. In addition to these provisions, there are also limitations such as  libel, slander, obscenity, pornography, sedition, incitement, fighting words, classified information, copyright violation, trade secrets, food labeling, non-disclosure agreements, the right to privacy, dignity, the right to be forgotten, public security, and perjury.

The International Covenant on Civil and Political Rights (ICCPR) permits limitations on the rights recognised in Article 19(2), but those limitations must be:

1. provided by law and
2. necessary for respect of the rights or reputations of others, for the protection of national security, public order, or public health or morals.

These permissions are further expanded as follows:

1. freedom from discrimination (article 2 of the ICCPR)
2. freedom from cruel, inhuman or degrading treatment (article 7 of the ICCPR and article 37(a) of the CRC)
3. the right of children to special protection (article 24 of the ICCPR and article 3 of the CRC)
4. freedom from arbitrary interference with home, family, correspondence or reputation privacy (article 17 of the ICCPR).

Whether particular restrictions on freedom of expression which are designed to protect these rights are justifiable will depend on more specific consideration of the restrictions concerned and the circumstances.

From the foregoing, it can be surmised that a person’s claim to the right of freedom of expression cannot be a defence where the person is found guilty of cyberstalking or several other forms of infringement. The saying “where one person’s rights end, another person’s begins” is very apt here. By virtue of the exclusion of all cyberstalking acts by the provisions of the Cybercrime Act, a person’s freedom of speech and expression do not constitute a right to infringe upon a person’s rights to their social media space.

Ingredients of Cyberstalking

The crime of cyberstalking is largely subjective in nature. Because of the constantly changing nature of the internet, it is difficult to lay down parameters defining the extent of overt action that will constitute cyberstalking. Thus, it will mostly lie to the judge to determine the validity of an action in cyberstalking. However, the following constitute the points an act accused of constituting cyberstalking should fit: 

1. Must be on the cyberspace/internet,
2. Must infringe upon the complainant’s privacy,
3. Must be intended to bully, harass or/and discomfort the complainant,
4. Must be threatening and menacing, intentionally or otherwise,
5. Must have affected the complainant’s mental health, etc.

These ingredients in no way exhaust the things to be proved in a case of cyberstalking. In proving a case of stalking, the prosecution has to prove that a reasonable person would have known that the behaviour would create distress or fear in the circumstance of the case and the harassment must have happened on enough occasions to lead to a reasonable conclusion of stalking. This also applies to the crime of cyberstalking.

Conclusion

The Act was a great innovation, responding to changing times in the development of the world. Its enactment was a timely innovation to curb the rising rates of cyberstalking in Nigeria. Before the Act, there was  and conflicts about which laws applied to this crime but the Cybercrime Act has adequately cured that. 

However, despite the greatness of the innovation, there is currently no court decision on any cases relating to cyberstalking. The only ongoing cases of cyberstalking are cases relating to journalists  and politicians who have been accused of cyberstalking as a by-the-way amongst other crimes and cybercrimes. This makes it obvious that the Nigerian populace is still ignorant of the remedies available to them when they have been cyberstalked. An urgent sensitization of Nigerians is very necessary if the Cybercrime Act will reach its full potential. Several blatant cases of cyberstalking and cyberbullying are seen on social media daily and it may be a good prerogative to encourage Nigerians to pursue legal action, thereby increasing the public knowledge on the meaning and punishments of cyberstalking.

Unlike the crime of internet fraud and related offences, cyberstalking gets little or no recognition or application of the laws applying to it. Any of the acts listed by the Act to constitute cyberstalking have one thing in common: the stalking must be perpetuated on the internet. This is a condition precedent for the crime to switch from regular physical stalking and fall under the purview of the cybercrime Act. 

A person’s freedom of expression shall not be a defence for any act which is classified as cyberstalking under the Cybercrime Act. The limitations to the freedom of expression include acts prohibited by the law. Thus, the mere inclusion of those acts under the Cyberstalking Act takes away any claim by an accused person that the act done was done in furtherance of his rights to expression.

From all the above, it is clear that the creation of the Cybercrime Act was a great move. However, many more needs to be done. A law that people are ignorant or oblivious about cannot be applied as it was intended by the enacting body. The Nigerian government needs to  begin sensitization programs and workshops to further integrate the implications of the Act into the hearts of Nigerians to inform them of the extent of protection afforded them by the Act.