Cyber Security / Cyber Crime
Disini v. The Secretary of Justice
On Appeal Contracts Expression
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The Federal High Court sitting in Lagos, Nigeria, struck out a challenge to the constitutionality of Sections 24 and 38 of the Cybercrimes Act, for being frivolous and lacking merit. Section 24 penalized online transmission of content that was broadly defined as offensive or false. Section 38 required service providers to retain and preserve all traffic and subscriber data. The Applicants argued that the sections were unconstitutional and violated and would likely further violate fundamental rights to freedom of expression and privacy guaranteed by the 1999 Constitution of the Federal Republic of Nigeria, and Article 9 of African Charter on Human and People’s Rights. The Court found that the fundamental rights invoked were not absolute but subject to legitimate restrictions pursuant to Section 45 of the Constitution which aims to protect public safety, public order, public morality or public health as well as the rights and freedom of other persons.
The Plaintiffs in the case, Paradigm Initiative for Information Technology Development, The EIE Project Ltd/Gte and the Media Rights Agenda, are all not-for-profit Non-Governmental Organizations.
Plaintiffs brought the lawsuit against the Attorney General of the Federation, National Assembly and the Inspector General of Police challenging the constitutionality of Section 24 and 38 of the Cybercrimes Act, 2015 for infringement and likelihood of further infringements of their Right to Freedom of Expression and Right to Privacy as guaranteed in Section 39 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Article 9 of the African Charter on Human and People’s Rights and Section 37 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) respectively.
Section 24 of the Cybercrimes Act 2015 provides as follows:
“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” [p. 5]
While Section 38 of the Cybercrimes Act provides that:
(1) A service provider shall keep all traffic data and subscriber information as may be prescribed by the relevant authority for the time being, responsible for the regulation of communication services in Nigeria, for a period of 2 years.
(2) A service provider shall, at the request of the relevant authority referred to in subsection (1) of this section or any law enforcement agency –
(a) preserve, hold or retain any traffic data, subscriber information, non-‐content information, and content data; or
(b) release any information required to be kept under subsection (1) of this section.
(3) A law enforcement agency may, through its authorized officer, request for the release of any information in respect of subsection (2) (b) of this section and it shall be the duty of the service provider to comply.
(4) Any data retained, processed or retrieved by the service provider at the request of any law enforcement agency under this Act shall not be utilized except for legitimate purposes as may be provided for under this Act, any other legislation, regulation or by an order of a court of competent jurisdiction.
(5) Anyone exercising any function under this section shall have due regard to the individual’s right to privacy under the Constitution of the Federal Republic of Nigeria, 1999 and shall take appropriate measures to safeguard the confidentiality of the data retained, processed or retrieved for the purpose of law enforcement.
(6) Subject to the provisions of this Act, any person who contravenes any of the provisions of this section commits an offence and shall be liable on conviction to imprisonment for a term of not more than 3 years or a fine of not more than N7,000,000.00 or to both fine and imprisonment. [p. 6-8]
The plaintiffs requested five reliefs with the primary being:
Justice Idris delivered the judgment of the Federal High Court in Lagos.
The Court first had to determine whether the application was meritorious and engaged fundamental rights. To that end, it reviewed case law which defined the concept of fundamental rights. The Court cited Ransome-Kuti V Attorney General of the Federation (1985) 2 NWLR (Pt. 6), 211 and Odogu V A.G Federation (2002) 2 HRLRA 82 at 102 to establish the fact that fundamental human rights are immutable and guaranteed in the 1999 Constitution of the Federal Republic of Nigeria (Constitution). However, the Court clarified that they are not absolute or “above the country, the constitution and the people.” [p. 5]
The fundamental rights of freedom of expression and privacy are guaranteed under sections 37 and 39 of the Constitution. Section 39 of the Constitution guarantees the fundamental right of freedom of expression, opinions and to “receive and impart information without interference.” Section 37 of the Constitution also protects the fundamental right to privacy “of citizens, their homes, correspondence, telephone conversations and telegraphic communications.”
Having noted the Constitutional protections under Sections 37 and 39, the Court clarified that they may “suffer certain derogations, restrictions and limitations” necessary to protect specified rights and interests of others as codified under Section 45 of the Constitution:
“Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society-
Next the Court found that Sections 24 and 38 of the Cybercrimes Act fell within the exceptions created by Section 45 of the 1999 Constitution. Citing Supreme Court precedent, the Court affirmed that “all fundamental rights are subject to overriding public interest.” [p. 11] The Court reasoned that while Section 39 of the Constitution guarantees “the most cherished rights” of freedom of expression and information, those rights must be balanced with the rights of other members of society to be shielded from defamation and false information, among other offenses. Therefore, “the State needs to regulate the practices of the citizens” through legislation such as the Cybercrimes Act 2015.
The Court next explored the claim that sections 24 and 38 violated the fundamental rights to freedom of expression and privacy. The Court reviewed the language of sections 24(1)(a) and (b) of the Act as it related to violations of freedom of expression and found it to be “clear, straightforward, and unambiguous.” [p. 13]
The Court stressed that Section 24 of the Cybercrimes Act seeks to protect society at large “regardless of fundamental rights of the citizens.” Moreover, in the present case, the applicants were effectively asking to put the rights of the individual over that of “society at large,” which the Court could not do. In support of this position, the Court referenced Badejo v. Minister of Education (1996) 9-10 S.C.N.J. 51 where the “Supreme Court rejected the prayer of the appellant on the ground that it will be putting the Federal Republic of Nigeria at the mercy of the appellant which would amount to a total brutalization of other people’s fundamental rights in favour of one person’s right.” [p. 15]
The Court next found the claim that section 38 of the Cybercrimes Act violated the right to privacy guaranteed under section 27 of the Constitution to be baseless. Similar to the reasoning above, the Court reiterated that the fundamental rights protected under the constitution are not absolute and cannot prevent the application of other laws. The court therefore expressly noted that the essence of Section 38 of the Cybercrimes Act 2015 only provides for circumstances where information may be released at the request of a law enforcement agency.
Based on the arguments presented, Justice Idris dismissed the application as “frivolous” and unmeritorious.
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