Cyber Security / Cyber Crime
Disini v. The Secretary of Justice
On Appeal Contracts Expression
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The Federal High Court in Lagos, Nigeria, dismissed a challenge to the constitutionality of a provision in the Cybercrime (Prohibition, Prevention, etc) Act on the ground that the offense was overbroad and vague and threatened the constitutional right to freedom of expression. The impugned provision made it an offense to send a message via a computer system which was “grossly offensive”, “obscene” or “of a menacing character” or to send a message, knowing it 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”. The Court reasoned that the provision was not vague, that “cybercrime is incapable of direct definition” and that the restriction on freedom of speech was necessary in a democratic society in the interests of defense, public safety, public order, public morality or public health pursuant to section 45 of the Constitution.
In 2015 the Cybercrime (Prohibition, Prevention, etc) Act came into effect in Nigeria. Section 24(1) of the Act made it an offense for any person to “knowingly or intentionally send a message or other matter by means of computer systems of 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 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 sentence on conviction for such an offense is a fine of up to N7,000,000 (approximately USD20,000) or imprisonment for up to three years or both.
Solomon Okedara, a legal practitioner in Nigeria, filed an application before the Federal High Court in Lagos challenging the constitutionality of section 24(1) of the Act. Okedara submitted that the provision lacked a clear definition of the offense as it was vague and overbroad and that it threatened the right to freedom of expression (protected by section 39 of the Constitution) and a fair hearing (protected by section 36(12) of the Constitution).
Judge Buba delivered the judgment of the Federal High Court in Lagos.
In his pleadings Okedara referred to section 36(12) of the Constitution which requires that all criminal offenses be defined and prescribed in a written law. He accepted that section 24(1) of the Act clearly met the requirement of being a “written law”, but said that the terms “grossly offensive”, “menacing character”, “insult” and needless anxiety” were not sufficiently defined in the Act and so the offense did not meet the requirements of section 36(12). Okedara referred to the Indian case of Singhal v. Union of India (2013) 12 S.C.C. 73 which had held that certain provisions of Indian’s Information Technology Act were impermissibly vague. Okedara also referred to the Kenyan case of Andare v. Attorney General (Petition No 149 of 2015) which had decided that a provision of the Information and Communications Act imposed criminal sanctions in a way that was unconstitutionally vague, and to the British case of Chambers v. Director of Public Prosecutions  1 W.L.R 1833 in support of the fact that words such as “menacing” can have vastly different interpretations. Okedara further submitted that section 24(1) “cast its net too wide” by using the term “grossly offensive” because the provision could be used to catch any discussion, opinion or advocacy on political, artistic, scientific or literary subjects that are ordinarily constitutionally protected.
Relying on the Nigerian case of Dim v. African Newspaper Ltd (1990) 3NWLR (PT. 139) Okedara submitted that Nigerian Courts had accepted the importance of the right to freedom of expression and he also referred to the Indian cases of Bennet Coleman & Co v. Union of India  2 S.C.R. 757 and Sakal Papers (P) Ltd v. Union of India  3 S.C.R. in this respect. He added that the Court should apply the reasoning in the Nigerian case of Okogie v. Attorney General Lagos State (1981) 2 NCLR (which had held that the word “medium” in the previous constitutional provision protecting freedom of expression should be interpreted to include schools as a medium of imparting ideas and information) to extend the protection of section 39 of the Constitution to expression made via computer systems.
Okedara argued that section 24(1) of the Act had a chilling effect because its vague description of offenses would force “millions of Nigerians who own and operate social media … to resort to self-censorship”.
Okedara also provided Nigerian jurisprudence governing the limitation of rights including with regard to freedom of expression. He argued that section 24(1) of the Act did not meet the requirements for a permissible limitation to the right to freedom of expression as it was not a proportionate measure by which to achieve the objectives sought by the legislation, and should therefore be declared invalid.
Judge Buba referred specifically to three issues for determination. Firstly, whether the action had been brought against the proper party so as to warrant the court’s jurisdiction. On this the Court stated that the Attorney General was the appropriate party to be sued in applications challenging the Acts of the National Assembly by virtue of his position as Chief Law Officer and particularly his statutory duties with regard to the Cyber Crime Act. The second issue for determination was whether the action was based or predicated on a valid and ascertainable law. The Court said that the action was predicated on the relevant sections of the Constitution and the Cyber Crime Act, both valid and ascertainable laws. Further, it said that the Attorney General’s suggestion that Okedara was asking the Court to redraft the relevant sections was an “overreaching leap” when it was clear that the application was for declaratory reliefs.
Finally, the Court had to determine whether section 24(1) of the Cyber Crime Act violated sections 36(12) and 39 of the Constitution. Judge Buba noted that he had read all Nigerian and comparative jurisprudence cited by the Okedara and came to the conclusion that “[s]ection 24(1) Cybercrime Act does not in any way conflict with section 36(12) 1999 Constitution of Federal Republic of Nigeria”. He added that “[t]he offences as contained in Section 24(1) Cybercrime Act is quite clear and defined” (p. 35). Further, he said that section 39 of the Constitution, which guarantees freedom of expression, must be read in conjunction with section 45 which states that nothing in sections 37-41 “shall invalidate anything that is reasonably justiciable in a democratic society in the interest of defence, public safety, public order, public morality and public health or for the purpose of protecting the rights and freedom of other persons”. He concluded that “[t]aken together with other Sections of the Cybercrime Act, it is in the interest of defence, public safety, public order, public morality and public health. Thus in the instant case, Section 24(1) is in the best interest of the generality of the public”.
In reaching his decision, Buba referred to a book written by Joshua E Alobo which commented on the quickly-changing world of cybercrime and the need for judicial officers to remain abreast of the changes and complexities. He concluded that “Cybercrime is incapable of direct definition” and that “to define it with mathematical exactitude is to underscore the nature of Cyberspace crime and to exhibit a regrettable knowledge of the subject. He commented that “Cybercrime is better described than defined” and that section 24(1) “is not generic; it is not nebulous or imprecise”.
Accordingly, Buba dismissed Okedara’s application.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Federal High Court in Lagos contracts expression by concluding that cybercrime offenses may be broadly defined in part because of the difficulties in defining “cybercrime”.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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