FOLAKE FOR THE NIGHT…A short story.

It was at the Easter hangout beach party that Ebuka met Folake. It wasn’t just Ebuka who was restless over her. DJ Samosa had asked for her name earlier and kept playing “Folake give me love oh, baby panam!…” Folake’s light brown skin glazed effortlessly that one could easily guess she uses Oriflame products. She had a lot of features that glued a man’s eyes, but it was her waist for Ebuka. 

Not long, this smart sweet talker engaged Folake in a fun, exciting conversation and they spent all day together till the party was over. But for Ebuka, the hunt was not over as he fantasized about hosting her in his room, on his 6×6 king-sized bed, on his semi-orthopedic double spring mattress. (DJ please play Folake for the night.)

Over the days, their chats became more exciting, as they exchanged randy messages. Ebuka wanted to devour her as soon as possible, but Folake needed time to assess his application. However, she has been sending Ebuka some sensual clips of herself.

To cut the story short, since Ebuka’s dream to tap Folake’s blessings had been just a dream for many days and nothing more, he resorted to threatening Folake and blackmailing her, that he will send the clips to his friends and upload same on the internet if she doesn’t make herself available for the night. Traumatized Folake kept pleading to deaf ears and Ebuka eventually uploaded the videos and pictures on the internet as well as shared with his friends- Somto and Desmond.

From the story above, two questions suffice:

1. Has Ebuka committed any offense punishable under the Nigerian law?

2. If yes, is there any remedy, or remedies available to Folake?

Introduction/ Definition

Let’s attempt a definition, shall we?

In simple but encompassing terms, Revenge Porn refers to the publication of private explicit sexual contents (images or videos or both), by means of any medium (online through social media platforms, internet etc, or offline through prints), without the consent of the victim.

Elements of Revenge Porn

The notable elements in the definition of Revenge Porn are:

1. The existence of private explicit content.

2. Publication or sharing of the said content.

3. No consent given by the victim.

Most times, the reoccurring cause of such publication is the victim’s refusal to grant certain request(s) of the perpetrator (a person who carries out harmful or illegal act); some of which may include request to: have sexual intercourse, obtain money, be in a relationship or marriage etc. The underlying motive of the perpetrator is to obtain selfish favours by way of blackmailing, which causes distress to the victim.  

Unfortunately, victims are exposed to abuse and discrimination in the home, school or workplace, cyber-stalking or even physical attacks. Regrettably, the trauma and distress may be too much for the victim to handle, and they may resort to suicide as a means to escape the resultant problems.

Laws Prohibiting Revenge Porn in other Countries

Let’s consider a few countries that have enacted laws to prevent people like Ebuka from publishing sexual contents of others without their consent, or punish them after the crime is committed.

Singapore

The recent Amendment of the Penal Code of Singapore has made provisions for Revenge Porn which sees that perpetrators will get “a maximum jail term of five years with an option of a fine and caning under the new offence. Imprisonment will be made mandatory if the offence is committed against anyone aged under 14 years.”

Canada

In 2014, the Canadian government passed an Amendment Bill for an Act aimed to amend the Criminal Code, and protect Canadians from cybercrimes. The Act is known as Protecting Canadians from Online Crime Act; S.C. 2014, c. 31.

Particular on Revenge Porn, Section 162 provides in its subsections thus:

 (1) Everyone who knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person knowing that the person depicted in the image did not give their consent to that conduct, or being reckless as to whether or not that person gave their consent to that conduct, is guilty

(a) of an indictable offence and liable to imprisonment for a term of not more than five years; or

(b) of an offence punishable on summary conviction.

Subsection (2) defines an intimate image thus:

(2) In this section, intimate image means a visual recording of a person made by any means including a photographic, film or video recording,

(a) in which the person is nude, is exposing his or her genital organs or anal region or her breasts or is engaged in explicit sexual activity;

(b) in respect of which, at the time of the recording, there were circumstances that gave rise to a reasonable expectation of privacy; and

(c) in respect of which the person depicted retains a reasonable expectation of privacy at the time the offence is committed.

South Africa

In South Africa, the Films and Publications Amendment Act, 2019 (you can read the Act here) makes it a crime to distribute a private sexual photograph or film without the consent of the pictured individual and with the intent to cause them harm. The penalty is a fine of up to R150,000 and/or up to two years’ imprisonment; or double that if the victim is identifiable in the photograph or film.

Australia

The Parliament of Australia in 16th August, 2018 enacted a very comprehensive Act – Enhancing Online Safety (Non‑consensual Sharing of Intimate Images) Act (2018) – that does not only define an intimate image, intimate activity, Consent, or provides for punishment, but also made provisions for Complaints and Objections, as well as removing such contents from the cyberspace.

Regarding Consent, the Act provides in Section 9E that consent MUST be express, informed and voluntary. Consent obtained from a child or someone who has mental conditions is not consent at law.

Anxious to know what the Nigerian laws provide? Here you have it!

Revenge Porn and the Nigerian Perspective

Over the years, there have been countless cases of Revenge Porn in Nigeria. The Criminal Code Act 2004 and the Cybercrimes (Prohibition, Prevention, Etc) Act 2015 are the Nigerian enactments that somewhat made provisions for Revenge Porn.

Section 170 of the Criminal Code Act provides thus;

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 misdemeanor and is liable to imprisonment for one year.

Analyzing the Criminal Code

Taking an intensive ride into the provisions of this Section, one will realize the scantiness of same. Clearly, subsection (a) obviously was not making reference to Revenge Porn. Subsection (b) however came close but still is filled with lacunae (vacuum). For instance, what happens when the posted content is a video? Or when it is posted via online digital medium? Evidently, the Criminal Code Act Cap C38 LFN 2004, was enacted in the era when the internet and social media lacked prominence. Conclusively, the Act needs to be revisited and amended by the Nigerian Legislature.

Analyzing the Cybercrimes (Prohibition, Prevention, Etc) Act, 2015

On the other hand, the Cybercrimes (Prohibition, Prevention, Etc) Act 2015 embraced Revenge Porn better, albeit there still exists some loopholes too. 

Particularly, Section 24 of the Act provides thus;

(a) Any person who knowingly or intentionally sends a message or other matter by means of computer systems or network that 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.

A meticulous assessment of these provisions brings few loopholes to the fore. For instance, according to subsection (a), only messages or other materials “sent by computer systems or network” are protected. What about messages produced by computer systems, but not sent by the same medium?

Let’s say Ebuka printed explicit pictures of Folake through a printer (computer system) and then pasted them on the doors of other tenants in the compound. Does the Act capture this scenario? 

Some arguments may hold that subsection (b) only provided for situations where the perpetrator publishes a content he “knows to be false”. What if the incident actually happened? A counter-argument would be that subsection (a) already covered the field.

Worthy of mention too, there is no express provision for Consent in the Act. Does this mean that once an explicit content is published, the publisher becomes liable regardless of whether consent was obtained or not? Going through the lines and spirit of subsection (b), it behoves to acknowledge that the lawmakers impliedly intend lack of consent to be an element considering the line: 

“…for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, ill will or needless anxiety to another…”

The above clearly depicts that there is no consent.

Also, Section 23 (2) of the Cybercrimes (Prohibition, Prevention, Etc) Act 2015 provides thus:

“Any person who knowingly makes or sends other pornographic images to another computer by way of unsolicited distribution shall be guilty of an offence and upon shall be sentenced to one year imprisonment or a fine of Two Hundred and Fifty Thousand Naira or both.”

This provision basically prohibits sharing of explicit contents across computers like mobile phones, laptops and other computer systems.

Note that when lacunae (vacuum) exist in enactments and laws, the ball bounces to the court of the Court to interpret such provisions to ultimately attain justice.

(Read our article on Cybercrimes here)

Available Remedies of Revenge Porn

A victim of Revenge Porn, as a matter of urgency, must report to the police immediately a threat to publish shared explicit image(s) or video(s) of the victim is made. The victim should also seek the assistance of a lawyer. The victim must not take laws into their hands as this will only delay the process of getting justice and retrieving the content(s) from the accused. But, should the victim share those videos to the police as evidence? (Let me know what you think).

Once a case is made and proven in court, the victim can get as much as N7,000,000.00 (Seven Million Naira) as compensation, and also a jail term for the accused if found guilty. 

In my view, The Criminal Code Act should be amended to comprehensively provide for and include Revenge Porn as an offence under our Nigerian law to cover situations where publication is made both online through digital means, or offline by traditional means. Also, the Cybercrimes (Prohibition, Prevention, Etc) Act 2015 requires amendment and fine-tuning to properly cover the field in Revenge Porn matters, and leave little or preferably no inconsistency for the Court to interpret. To add, a separate enactment on the issue of Revenge Porn should be considered by the Nigerian Legislature. The world is evolving daily, hence laws should evolve with it.

In the same breath, persons are discouraged from sharing private explicit images or videos of themselves to another.

Extra Recommendations

1. A public awareness campaign should be embarked upon. Law enforcement agents, NGOs, Lawyers, Medical practitioners, Mental Health specialists etc. must all rise to the occasion and condemn this evil act through all available media. The intention is to discourage perpetrators by making them understand the dangers caused by such acts, as well as the punishment if found guilty by the law.

2. Aside from reporting to the police and getting a lawyer, victims must also report to a Mental Health Therapists and counsellors who would help manage the negative psychological effects of the publication on the victim.

So, back to my questions…

Has Ebuka committed any crime under the Nigerian Law? If yes, what is your advice for Folake?

Let’s chat in the comment section. You may as well wish to ask if there are Civil remedies to Revenge Porn. I will answer you.

Thank you for reading. I will write to you again soon.

Written by Desmond Otikpa, Esq.