The use of Internet has so many advantages and when it is used for the wrong purpose, it can be catastrophic. For instance in cases of revenge porn, the Internet becomes an instrument of achieving such a catastrophic effect due to its capacity of making the explicit sexual content viral within minutes of its release. With the share and send button it can get to millions of people within a short period of time.
The worst of it is that it remains permanent and can be viewed from time to time. It is commonly said that the Internet never forgets and once a bad image of someone circulates the Internet, it can be nearly impossible to take down due to the storage of information in the World Wide Web.
In some cases it can make the victim famous with gains. Example is the famous sex tape of Kim kardasham which was released by her ex-lover and in other cases it can cause an irreparable damage to the reputation of the victim, large scale criticism and show of scorn.
On daily basis there are issues of blackmail and the release of sexual contents of a party by another and usually when a relationship goes sour as a way of tarnishing the image of the other person. This is often done as a way of revenge. Due to the alarming rate of litigation and debates on this issue and its high prevalence expecially in this digital age of computers and social media, countries have enacted legislations to curb this trend.
According to Wikipedia, Revenge porn or revenge pornography is the distribution of sexually explicit images or video of individuals without their consent. The sexually explicit images or video may be made by a partner of an intimate relationship with the knowledge and consent of the subject, or it may be made without his or her knowledge. The possession of the material may be used by the perpetrators to blackmail the subjects into performing other sex acts, to coerce them into continuing the relationship, or to punish them for ending the relationship.
Jurisdictions which have passed laws against revenge porn include Israel, Germany, the United Kingdom, thirty-four states of the United States. Etc.
We shall examine the legal implications of the non-consensual release of a sexual or explicit content in Nigeria and if there is any existing law prohibiting such acts and which makes it an offence. The two legislation which covers this act or closely relates to it are the criminal code Act and Cyber crimes(prohibition, Prevention, etc) Act 2015.
Section 2 of the Criminal Code Act defines an offence as an act or omission which renders the person doing the act or making the emission liable to punishment under this code, or under any Act, or Law, is called an offence.
It flows therefrom that no person in Nigeria shall be liable to be tried or punished in any court in Nigeria for an offence, except under the express provisions of the code or of some Act or Law which is in force in, or forms part of the law of Nigeria:
Provided that in the case of an offence committed before the commencement of this Act the offender may be tried and punished either under the law in force when the offence was committed or under the code, provided that the offender shall not be punished to any greater extent than was authorised by the former law.
A thorough perusal shows that the criminal code however is silent on the issue of non-consensual release of explicit content of a party, also known as revenge porn regarding the use of computers and also made no provision on cybercrimes. If any publication was made outside the Internet or social media, then the criminal code may apply.
It can be said that before any other enactment was made, the concept of revenge Porn in relation to computers, social media and cyberspace was not an offence in Nigeria or has been an offence that has not been taken judicial notice of. For instance bigamy is an offence and yet you dont see anyone being convicted for it despite the prevailing occurrences. The enactment of Nigerian Cybercrimes Act of 2015 covered a lot of grey areas but it can be argued that the legislation is greatly flawed as it still did not cover the whole concept of revenge porn entirely, therefore creating some lacunas.
The world is evolving and so legislations ought to be made to reflect prevailing circumstances especially in this computer age where a lot of crimes can be committed by a person without having to step out of the house.
Is Revenge Porn a crime in Nigeria?
Section 170 of the criminal code Act provides that any person who knowingly sends, or attempts to send, by post anything which-
(a) Encloses anything, whether living or inanimate, of such a nature as to be likely to injure any other thing in the course of conveyance, or to injure any person; or
(b) encloses an indecent or obscene print, painting, photograph, lithograph, engraving, book, card, or article, or which has on it, or in it, or on its cover, any indecent, obscene, or grossly offensive words, marks, or designs; is guilty of a misdemeanour, and is liable to imprisonment for one year.
Whether this provision covers revenge porn is left for the Nigerian courts to decide. It can be interpreted that this provision doesnt cover any publication or sharing via computer networks hence the provisionsin section 24 of CYBERCRIMES (PROHIBITION, PREVENTION,ETC)ACT,2015
CYBER CRIMES(PROHIBITION, PREVENTION,ETC)ACT,2015 was enacted in 2015 to curb the manace of cybercrimes in Nigeria. It expanded its scope to include child pornography and other related offences and also the release of explicit contents without consent. Prior to this enactment, these heinous acts has gone unchecked and overtime become unabated. There is hardly any conviction with respect to such acts or any monetary compensation to victims who suffered as a result of such release.
Section 24 of CYBERCRIMES (prohibition, Prevention Act 2015 attempted to makes it unlawful for one to indulge in revenge porn. It provides thus;
Any person who knowingly or intentionally sends a message or other matter by means of computer systems or network that (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: 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.
From the above provision especially sub (a) of 24, some may argue that revenge Porn falls under that category but with special emphasis on knowingly on internationally.
While others may argue that it does not cover revenge porn since the section does not make reference to a computer release of a sexual or explicit pictures or videos of another person without their consent. Another issue to consider again is sending, which has to do with Internet publication. Whether or not the above provision covers leaks and hacks shall be discussed hereunder.
The concept of revenge Porn by the definition of Wikipedia reflects the wordings of the Act in Section 24 (b) words like danger, injury, hatred etc and went further to add knowing to be false which has also created a lacuna in capturing revenge porn. In cases of revenge porn, such released explicit contents are usually true. In other for the law makers to truly capture the concept of revenge porn properly, then the wordings in sub b of section 24 ought to be included in sub (a) but with the exclusion of knowing it to be false.
Does this law covers leaked sexual contents?
The law is that for one to be guilty of a crime, there must be an element of actus reas and the mens rea. The mind must have contemplated the act and there must be physical acts directed towards achieving such goal. So in cases of leaks and hacks, can it be said that there was mens rea? The answer is in the negative, because the above sited provision clearly stated knowingly and intentionally, if the courts adjude that it covers revenge porn.
The law itself does not prohibit the keeping of such explicit contents in our devices. What it prohibits is the sharing of such contents without the consent of the other person captured on it. For some countries, this act is common and is not a crime while for others it is. Whether there is an express provision against revenge porn in Nigeria, is something that is unclear as the law was not made expressly to that effect.
CYBERCRIMES(PROHIBITION, PREVENTION,ETC)ACT,2015, Section 24 does not also state whether it must be done with consent or without consent. There is without doubt a lacuna in that provision.
The Challenge of prosecution in Nigeria.
Revenge porn can be costly in other jurisdictions such as United States.
A federal district court in California entered a default judgment against a man and ordered him to pay $6.45 million in damages after he was accused of spreading an ex-girlfriends naked pictures and videos online.
In this era of computers and the possibility of hacks and leaks, it is often difficult to establish that the perpetrator intentionally released such explict contents. When the matter becomes very serious they often hide under the cloak of leaks and hackers. They say that hackers hacked their account and released those contents. Nigerian law enforcement agencies and the court are not diligent in prosecuting such offenders and the victims reputation is brought to shame. To help curb this offence, parties should refrain from taking sexual videos and pictures of themselves because when they go their separate ways, the issue of revenge Porn may come up.
The challenge in prosecution is simply hinged on the fact that one could easily hide under the cloak of hacks and leaks thereby escaping criminal liability. A question comes to mind as to whether it would be adequate for victims of revenge porn to seek redress through a criminal action or sue for damages under civil suit. If Nigerian courts are reluctant to convict such perpetrators, a least there should be some form of monetary compensation as damages like the Carlifonia case sited above.
Nigeria is not ready to respond to the trend of revenge porn and while we await a definite legislation on that, it is therefore advisable for people to refrain from allowing others to take explict contents of themselves to prevent it falling into the wrong hands.