On 4 December 2013, several reports to the tune of “Senate Proposes 7-Year Jail Term for Social Media Critics” were all over the internet. In a short while, however, it became clear that an important legislative development had been embedded amidst sensational journalism.
The Nigerian Senate has apparently scaled through the second reading stage of the proposal for a Bill for an Act to provide for the prohibition and punishment for electronic fraud and crime in all electronic transactions in Nigeria. Of great concern to the Nigerian public, is the proposed section 13(3) of the Bill, which criminalises the electronic circulation of false information dangerous to national security or capable of inciting the people against the government.
It is important, at this point, to note that the Bill has only just scaled through the second reading phase, so there is still opportunity for amendments and further debate. Further, at the time of writing, the full details of the Bill are not readily available; therefore, the analysis here is merely a preliminary one, to be updated in due course and the explanations provided are subject to definitions/explanations to the contrary stated in the proposed law.
This article shall discuss the ingredients of this new offence and some issues that may arise if this portion of the Bill is passed into law.
Section 13(3) proposes that:
“Anyone who intentionally propagates false information that could threaten the security of the country or that is capable of inciting the general public against the government through electronic message shall be guilty of an offense and upon conviction shall be sentenced to seven years imprisonment or N5 million [fine]” (emphasis supplied).
Ingredients of the offence
As is expected from any legislation creating a crime, the ingredients of the offence created by section 13(3) are stated. The actus reus of the offence is the propagation, through electronic messaging, of false information capable of threatening national security or inciting the general public against the government. On the other hand, the mens rea of the offence is the requirement of intention.
It must be understood clearly that contrary to media reports, this section does not apply to only “social media critics”; this is a misconception. As the section clearly states, it applies to “anyone”. Therefore, a person does not have to be a user of social media or a critic, for that matter, before s/he could be found in contravention of the section 13(3) offence. Provided a person (which technically includes corporations) commits the offence (actus reus + mens rea) by electronic means e.g. through emails, video messaging, text messaging, etc., the person could technically be found guilty of the offence because these are electronic means of messaging.
This does not, however, mean that social media users are not being “targeted”, considering the fact that social media appears to be the new public forum both rightly and wrongly. If this is indeed the true rationale behind the inclusion of section 1393), the Senate has been careful and smart enough not to expressly mention a specific class of people (social media users/critics) so that the legislation would not be criticised as discriminatory and possibly unconstitutional, since it would appear to be targeted at innocent individuals exercising their fundamental human right to free expression of opinion, thoughts, etc.
The Actus Reus of the Section 13(3) Offence
For a clear understanding of the potential application of the offence, the various parts of the actus reus shall be discussed individually.
The drafters of the legislation have been careful (and possibly smart) to use the word “propagate” as opposed to words like “spread”, “share”, “publish”, “circulate”, “distribute”, etc. It appears “propagate” was the preferred word, to enable the legislation have wider reach.
“Propagation” has meanings such as “to multiply/breed”; “to cause to extend to a broader area or larger number”; “to make widely known”; “to spread and promote (an idea, theory, etc.) widely”, etc. As a result of the use of this word, therefore, writers/publishers/bloggers, etc., who provide fora for their readers/followers all over the world to comment could potentially be found guilty of the offence for propagating the alleged false information, even if the initial post was not false. If the legislation used any of the alternatives listed above, it would be difficult for such writers to be found guilty of the offence since technically, they would not have been the ones to spread/share/publish/circulate/distribute the information deemed false- the person who posted the comment (which I shall refer to as “commentator”) with the false information would be criminally responsible alone.
If that is not the intention of the drafters, writers/publishers/bloggers, etc. could still be found criminally responsible as a result of provisions like Section 7 of the Criminal Code. This does not mean that such writers/publishers/bloggers, etc. would be automatically found guilty; both ingredients of the offence must be proven by the prosecution for a successful conviction- the prosecution must prove that the writer/publisher/blogger, etc. actually had the intention to commit the offence. Further, it is possible for the Bill to have provisions with regard to defences such as the actual lack of knowledge that the commentator’s information was false, having made efforts to verify the information.
It could be argued that such wide reach of the statute and potential culpability of an innocent blogger is unfair and the statute should only be limited to those who actually post the false comments/information. On the other hand, considering that the statute is targeted at electronic communication, which knows no bounds with the wide spread use of the internet, it could also be argued that the statute needs to have such wide reach, so as to curtail the information being spread electronically, and for hosts to exercise due care when approving information to be shared through their websites.
In the even that this section actually passes into law, internet users have to exercise caution on what they post, especially on matters that may be controversial. Bloggers have to take special caution with regard to the comments they approve for publication on their blogs, as they may be found criminally responsible, especially as it may be difficult to trace the actual culpable commentator since people use bogus names and email addresses to post comments online; it would be easier for a prosecutor to focus on the host.
II. False information
This aspect of the offence appears to be the easiest part to define; false information is simply information that is not correct or true. For example, with regard to the Senate’s debate on the amendment of section 29(4)(b) of the Nigerian Constitution, it is clearly false information to say that the Senate proposed a bill to legalise child marriage in Nigeria because no such bill was in fact proposed, neither could it be implied from a correct understanding of what transpired. On the other hand, it is true information to state that the debate gave the opportunity for practitioners of child marriage to re-assert their right to such reprehensible practice and the fact that Nigerian law permits it.
On the other hand, the idea of false information is not as clear or simple as one may think at first glance because it could be argued that a person’s misconception or misunderstanding of a situation could lead to the person propagating false information. If this misconception could incite the public against the government, how would it be treated? Can a person’s thoughts and opinions technically be treated as information? Generally, in the law of defamation, pure statements of opinion are not actionable. Thus, if wisdom is to be drawn from the law of defamation, technically, opinions (if wrong), cannot be treated as information.
Since the analysis above is merely speculative, it would be enlightening to see what the Bill defines information as. If opinions expressed in writing are included in the definition, this would raise issues of fundamental human rights, as it would be a grave infringement thereof.
III. Capacity to threaten national security
What is national security? This has to be the most ambiguous phrase where government transparency is questioned. No universal definition of this phrase exists and it would be shocking if the Bill possesses or attempts to define it; if it actually defines it, there would most likely be an omnibus provision at the end of the definition, to secure the phrase’s all-encompassing cloak. The uncertainty of the coverage of national security is the most challenging aspect of this offence.
If the false information propagated by the alleged offender has the capacity to threaten national security and that was the offender’s intention, the person would be guilty of the offence. Another issue I find with this aspect of the offence is the fact that the false information does not have to actually threaten national security; it suffices that it is capable of threatening national security. Thus, what is the test for “capacity”? How would it be determined whether or not the alleged false information can threaten national security?
On the one hand, this provision appears to be a proactive measure; no need to wait for the threat to national security to happen/exist before acting- an attempt to nip the potential problem at the bud. On the other hand, this could be applied arbitrarily because the fact that X has the capacity to cause Y does not necessarily mean that Y would actually happen- only time would be able to reveal whether X indeed caused Y.
Possible solutions for the potential issues that may arise from the application of this part of the section would be a detailed definition of national security in the statute; section 13(3) should be treated as an inchoate offence with lesser penalty than what obtains now; and a section should be included to create an offence if the alleged propagation of false information IS indeed a threat to national security or if it actually incited the public against the government.
IV. Capacity to incite the general public against the government
Again, to shed light on this part of the offence, reference would be made to the #ChildNotBride campaign. A highpoint of that campaign was the attempt by a good-hearted person to write a petition (which was signed by hundreds of thousands of people) to the United Nations to stop the Nigerian Senate from making child marriage the law; this petition, as well as several media reports gave the world false information that the Senate was considering making child marriage the law (although Nigerian law already allows for it, especially on religious grounds). This false information incited the public against the government and fuelled the #ChildNotBride campaign.
Although the campaign was for the right cause, it was fought on the wrong foundation and premise. However, does this mean that criticism of the government from the people is the same as the public turning against the government? It is understandable if due to the alleged false information, the people are incited to bring the government to an end (e.g. change of leadership) or if it tarnishes Nigeria’s relationship/image with other nations, or if the people start agitating for secession (a different crime entirely). At what point should the line be drawn between constructive criticism and incitement of the public against the government?
The same points made above on capacity equally apply under this heading.
To sum up, several issues arise with the actus reus of this proposed offence, which shall pose potential difficulties for the prosecution and/or defence in the event that the crime is committed. More clarifications are needed and several factors ought to be considered.
The Mens Rea of the Section 13(3) Offence
Having discussed the actus reus, the discussion that naturally follows is one on the mens rea. As mentioned above, the mens rea of this offence is intention. It must be proved that the accused person had the intention to propagate false information capable of threatening national security or inciting the public against the government.
Generally, there are three (3) levels of mens rea required for criminal liability to be established- negligence, recklessness and intention. Of all three, intention demands the highest degree of fault and is the most difficult to prove. A crime that requires intention as the mens rea is usually a grievous offence. Therefore, it can be concluded that this section 13(3) offence is considered as grievous and rightly so, considering that the consequence of the actus reus affects national security and the acceptability of the government by the general public.
With regard to people who actually propagate the false information, if it was done with the aim/purpose for it to probably threaten national security or incite the public, they can be said to have direct intention. On the other hand, writers/publishers/bloggers, etc. who permit the false information to be posted on their sites, can be said to have oblique intention. This is because although the writer/publisher/blogger, etc. might not directly intend to propagate false information, it is reasonably foreseeable that having approved certain comments that contain false information, the potential impact of such comments –capacity to threaten national security or incitement of the public- is virtually certain.
Notwithstanding, it is reasonable to expect/anticipate that there would be defences available with respect to the section 13(3) offence. For example, it would be fair for writers/publishers/bloggers, etc. to have a defence if they did not know or could not reasonably have known that the information posted by a commentator was false, even if it is established that the writer/publisher/blogger, etc. intended to propagate the said comment (e.g. because the writers/publishers/bloggers, etc. knows s/he enjoys wide followership/readership. The problem, with such defence, however, is the same problem that exists whenever the test to be applied is an objective test. What is reasonable knowledge? How much due diligence should a writers/publishers/bloggers, etc. conduct before approving such comments? If there is indeed a defence, it would likely have the effect of reducing the penalty, rather than exonerating the accused from criminal responsibility.
Considering that indirect intent is generally not as easy to prove as direct intent, it would make sense for the mens rea requirement for writers/publishers/bloggers, etc. to be recklessness or negligence, which have a lower threshold than intention and appear to be more appropriate in the circumstances since they would most likely be found culpable for possessing indirect intent, based on what section 13(3) presently proposes.
Further, for the offence to be effective, a lesser degree of mens rea- recklessness or negligence- should be provided for, to cover circumstances where a person recklessly or negligently propagates false information. This would be useful in circumstances where the information directly propagated by a person turns out to be false, where such propagation could have been avoided if the person had verified the information before propagating same. For example, X tweets or texts: “President gives assent to accelerated/secret NASS Bill for an Act permitting the government to have unfettered access to funds in citizens’ bank accounts.” This message would be retweeted/forwarded by multitudes expressing their disbelief and shock; very few people would take the time to verify the information. That message thus has the capacity to incite the public against the government- even if it is for a short while, before a spokesperson of the Presidency/NASS confirms to the public that no such Act was proposed nor assented to by the President. Knowing Nigerians, there would still be suspicion of the possibility of the existence of such fictitious Act and conspiracy theories would assert that the government is denying its existence due to the reaction of the public.
In the scenario painted above, X has direct intent and should be found guilty of the full offence. On the other hand, those that forwarded/retweeted the false information without verifying its truth were at least reckless and should be made to suffer the consequences. Thus, a lesser penalty would be useful (preferably a fine), considering the potential large number of such offenders; offence in this degree should be treated as a misdemeanour.
Section 13(3) v. Sedition: Legislative Duplication?
Any reader familiar with the law(s) on sedition would immediately notice the striking similarities between the offence created by section 13(3) and the offence of sedition. Sedition refers to overt conduct or language that incites revolt/rebellion against the government. Chapter 7, Nigerian Criminal Code (see the box) deals with the offence of sedition and the mens rea of the offence is also intention, just like the section 13(3) offence but with regard to sedition, section 50(3) gives room to conclude that reference is being made to direct intention.
The most obvious difference between both offences is that while the punishment for section 13(3) offence is seven years, the punishment for sedition is two or three years and the fine for sedition is considerably less.
It may therefore seem as if there is legislative duplication, since sedition laws already subsists in Nigeria- therefore, there is no need to create a separate law. Although both laws are similar, besides the minor differences already mentioned, some important differences, which make this new law necessary, must be highlighted:
- The law on sedition was drafted at a time when electronic communication was far-fetched and obviously beyond the scope of the drafters’ consideration. The law therefore makes no special provisions for electronic messaging, whereas section 13(3) caters specifically for electronic messaging. Nevertheless, it may be argued (albeit weakly) that this is still insufficient to justify the creation of a new offence, since section 50(1)(b) Criminal Code has a definition that covers any seditious words wherever/however published;
- Seditious words do not have to be false; a prerequisite for the section 13(3) offence is falsehood of the information. Thus, considering that States generally cannot sue individuals for defamation, section 13(3) purports to criminalise defamatory statements where they have dire consequences to the nation; and
- Section 13(3) goes further than the laws on sedition by including threat to national security as a result of the false information propagated.
In present times, where people use the internet, especially social media, as the main avenue for public opinion, it is not uncommon for abuse to result. It is therefore not surprising that the legislature has proposed the creation of this offence to specifically cater for electronic communication.
Finally, the punishment may be considered by some as too harsh, when compared to sedition. A seven-year imprisonment or N5 Million (Five Million Naira) fine arguably could serve as a deterrent to any potential abuser of electronic messaging. Further, it appears that the section 13(3) offence is a felony, whereas sedition is a misdemeanour (see Section 3, Criminal Code). What is the motivation for making the section 13(3) offence a felony? Is it because national security is in the definition? Is it because the offender propagated as opposed to published a false information? Or is it because the information is false? Do other felonies have fine penalties for the same or similar amount? What is the justification for the imposition of the seven-year imprisonment or N5 Million fine? How were those figures arrived at?
These are questions worth exploring.
To sum up, the proposal of the new offence, in my opinion, is a welcome development in Nigeria’s legislative arena, in light of the disregard people tend to have when it comes to the dissemination of information electronically, especially using the internet. The news of this proposed section 13(3) is another example of such disregard, with media reports insinuating that the offence applies only to/is targeted at social media ‘critics’, whereas, this is not the case.
Nonetheless, many questions arise and there are issues that ought to be addressed, which should influence whether or not this proposed section 13(3) should be passed into law.
In the event that it is passed into law, every user of electronic messaging would have to pay serious caution to the messages transmitted or propagated, so as not to be found criminally liable- ignorance of the law is no defence.