Do you know that you can acquire liabilities for cybercrimes and or criminal defamation from those posts, comments and sharing of posts you make daily in your various social media platforms?

Cybercrime

Cybercrime is a crime committed in the cyberspace or in the realm of computers and internet. The Cambridge online Dictionary defines Cybercrime as a crime or illegal activity that is done using the internet. It is a crime committed with the aid of computer and internet. The Cybercrimes (Prohibition, Prevention Etc.) Act 2015 did not define the term Cybercrime but it prescribed many cybercrimes and their sanctions. These offences include: computer related forgery, computer related fraud, cyber terrorism, child pornography, cyber stalking, cybersquatting etc.

Criminal Defamation

Defamation, as was defined in the case of Sun Publishing Ltd. &Ors v. Dumba (2019) LPELR-46935(CA), is any imputation which tends to lower a person in the estimation of right thinking men or cause him to be shunned or avoided or ridicule or to convey an imputation on him disparaging or injurious to him in his office, profession, calling, trade or business. Defamation is also a crime and the state can initiate criminal proceedings against the defendant to secure his conviction. Both Penal Code (applicable in Northern Nigeria) and Criminal Code (applicable in Southern Nigeria) define defamation as a crime and prescribe sanctions for it.

 

Social Media

The term Social Media has been defined as forms of electronic communication through which users create online communities to share information, ideas, personal messages, and other contents. Social media also known as the new media are computer-based and interactive technologies that allow the creation, sharing/exchange of information, ideas, career interests, and other forms of expression and social networking via virtual communities and networks. Social media networking may take the form of a variety of technology-enabled activities. These activities include photo sharing, blogging, social gaming, social networks, video sharing, business networks, virtual worlds, reviews, and much more.

 

Individuals and organizations use various social media platforms/applications to network career opportunities, find people across the globe with like-minded interests, and share their thoughts, feelings, insights, and information. For individuals, social media is also used to keep in touch with associates, friends and family members. Some of the top social media platforms in the world today are: Facebook, Instagram, WhatsApp, Twitter, and Facebook Messenger.

 

Cybercrime, Criminal Defamation and Social Media

Social Media users stand the risk of incurring liability for criminal defamation and Cybercrimes in the course of utilizing their various social media platforms. The daily activities of social media users may birth liabilities for criminal defamation, cybercrimes, and other crimes under other criminal and penal enactments. It is therefore very important that posters, commentators, consumers, sharers, and potential victims of social media statements, comments and remarks exercise due care not to incur for themselves such criminal liabilities as they are responsible for their publications.

In cybercrimes, for instance, section 13 of the Cybercrimes Act provides for the offence of ‘computer related forgery’. It states that “a person who knowingly accesses any computer or network and inputs, alters, deletes, or suppresses any data resulting in inauthentic data with the intention that such inauthentic data will be considered or acted upon as if it were authentic or genuine,…commits an offence and is liable on conviction to imprisonment for a term of not less than 3 years or to a fine of not less than 7, 000,000.00 or both”.

The phrase ‘any computer’ in the above section includes one’s personal computers such as smart phones, laptops, desktop and any other computer gadget. To ‘input any data’ as in the above section include making posts, comments and sharing someone’s post or comment. The post (audio, video or written statement) that you post or share on any of your social media platforms qualify as data under section 13 of the Cybercrimes Act. The implication therefore is that, if you pick up your smart phone (computer) make a post, comment or share another person’s post (data) intending your audience (those who will read/see your post) to consider your post as true, authentic or genuine, if the content of your post turns out to be false, incorrect or inauthentic, you will be liable for the cybercrime of computer related forgery under section 13 above.

In the case of Julius v. FRN, (2021) LPELR-54201(CA) the Appellant posted on his Facebook platform ‘Nasarawa Mirror (@mirror 1996’ thus: ‘Al-Makura camps herdsmen to decimate voting population, wins senate seat.’ The Court of Appeal affirmed the conviction of the Appellant on count 3 of the charge brought under section 13 of the Cybercrimes Act, for disseminating unverified information in his Facebook platform with the intent that the unsuspecting public would believe and act on same as if it was authentic or genuine. He was sentenced to a term of 3 years imprisonment or an option of N7, 000,000 fine as provided in section 13 of the Cybercrimes (Prohibition, Prevention etc) Act, 2015.

The Court of Appeal stated thus: The Appellant received the statement/information above which he shared on his platform for a socio-political group known as ‘Solid Youth Frontier. ’Irrespective of the source or input, the Appellant ought to have verified the authenticity or otherwise of an allegation as weighty as the foregoing, before publicizing same in his Facebook platform…. Because he failed to make the necessary verification of the inputted data, it follows that the Appellant disseminated same trusting and intending that his followers in Nasarawa Mirror Facebook Platform in particular and the unsuspecting public in general would believe and act on the information as if it was authentic or genuine. The Appellant thereby committed the offence as charged.

In criminal defamation, Section 391(1) of the Penal Code defines Defamation thus: whoever by words spoken or written or by sign or representation makes or publish any imputation concerning any person intending or knowing or having reasons to know that such imputation will harm the reputation of such person, is said… to defame that person. While, section 373 of the Criminal Code defines defamatory matter as matter likely to injure reputation of any person by exposing him to hatred, contempt or ridicule; or likely to damage any person in his profession or trade by injury to his reputation. Under the Penal Code the sanction for criminal defamation upon conviction is a term of imprisonment which may extend to 2 years or fine or both. See Section 392, Penal Code Act. Under the Criminal code it is punished with 2 years imprisonment. See Section 375, Criminal Code Law.

In the case of Wala v. FGN (2020) LPELR-51082(CA) the Appellant posted on his Facebook page thus: ‘For 3 years now, Alhaji Abdulahi Muktar, Chairman NAHCON used Jaize to exhort equivalent sum of ₦35,000 to ₦45,000 from all 78,000 Pilgrims under the guise of Hadaya (Sacrificial Ram) on the arrangement that all the rams’ meat will be processed and frozen to be delivered to IDPs camp in Nigeria. Ever since then, no single ram was slaughtered in Makkah under this arrangement, no meat was moved to any IDP camp no money returned to any pilgrim’. The defendant was charged to court for criminal defamation amongst other charges.

The Court of Appeal held thus: It is clear from Exhibit D that defamatory words where published on Facebook where the Appellant has over 4000 contacts and many people have seen and commented on the Facebook post. If a statement is defamatory the publisher is deemed to know that it will harm the reputation of the person defamed.

The Court found the Appellant guilty and sentenced him to 18 months imprisonment for the offence of criminal defamation of Character under section 391 and punishable under section 392 of the Penal Code. He was also found guilty and sentenced to 2 years imprisonment for the offence of public incitement under section 114 of the Penal Code.

 

Conclusion 

It is worthy to point out here that, in both cybercrimes and criminal defamation, there are certain ingredients which the law requires the prosecution to establish before the conviction of the defendant can be secured. In establishing the elements of the offence, the prosecution must discharge the burden of proof beyond reasonable doubt. Where the prosecution fails to discharge its burden as required by the criminal law jurisprudence, the defendant would be discharged and acquitted.

*By Thomas O. Okaba, D.L., LL B., B L., Partner at Blackswan Solicitors. Email: [email protected] +234-07069320479.