Law Against Obscene Publications On Cyber-Media In Nigeria: A New Legislation Under The Cybercrime (Prohibition And Prevention, Etc.) Act, 2015 By Hameed Ajibola Jimoh Esq.

Under the Nigerian laws, the prohibition and prevention of obscene publications are well established. For instance, under the Criminal Code Act and the Penal Code Law and the Penal Code Act of Abuja. However, those legislations have not taken care of obscene publications via the cyber-media and until the enactment of the Cyber-Crime (Prohibition and Prevention) Act, 2015-herein after referred to as CCA-, it is submitted that there were no such law in Nigeria, which has been able to cover the on-line or internet or cyber-media publication of obscene materials. Perhaps, the reason might have been that the commonest means of dissemination and or distribution of the obscene materials were in relation to physical and or video and radio means. And books on media laws do not cover such discussions on cyber. However, as development grows along with technologies, there was the need to extend such prohibition and prevention of such obscene materials to cyber-media or on-line, including the social media. This technological development had also given rise to the enactment of the Evidence Act, 2011 with provisions for electronically generated evidence as well as the Central Bank of Nigeria’s Approved Format of Evidence For Electronic Transactions, 2013, all bothering on the technological development of crimes and transactions.

This article is an attempt at considering those provisions in the CCA vis-a vis the obscene publication, which as far as Nigerian Mass Media Laws are concerned, is the current and the superior law whose provisions supersede and covers the field of every other local legislation on the subject matter- i.e. obscene publications, by virtue of section 4(5) of the Constitution of the Federal Republic of Nigeria, 1999(as amended)-herein after referred to as the Constitution, and to juxtapose this later law with those former laws.

First and foremost, the issues of immorality and obscenity have always been of great concerns to society from time immemorial, perhaps as a result of religious beliefs and teachings, to such extent that the society frowns disciplinarily and punitively, at immorality and obscenity including the dissemination of such by publications and or media, hence, the concerns of the government to sanitise the society and protect the society from such immorality and obscenity by legislations criminalizing such. And this is not particular to Nigeria. Even at common law, prior to the enactment of the Obscene and Harmful Publications Act (UK) of 1857.

Furthermore, there seems not to be any clear definition of what is obscenity, however, what is obscenity can be classified as anything that is either: immodest to the extent of showing too much of the body,  indecent to the extent of being morally offensive, especially in a sexual way, offensive, rude or shocking, because it is for instance, too obviously related to or showing sex; or immoral to the extent of not being within society’s standard of acceptable, honest and moral behavior i.e. morally wrong. And all these are the captions in what is referred to as obscene publications e.g. pornography, erotic realism and or reality etc. See: Ese Malemi in his book Mass Media Las-Press Law, 3^rd Edition, 2009, Princeton Publishing Co., Ikeja, Lagos, at page 168.

The Constitution is so apposite to the provisions that for an act or omission to be an offence, the provisions of section 36(8) and (12) must be compiled with.

Furthermore, the right and freedom to express oneself has been conferred by section 39(1) of the Constitution and such right and or freedom can however be derogated from by law that is reasonably justifiable in a democratic society  in the interest of public morality among others, by virtue of sections

39(3) and 45(1) of the Constitution. This is indeed an issue of the jurisprudence of law which posits that right is the correlative of duty. So that a Nigerian citizen that enjoys certain right as that of the right of freedom of expression, also has the duty of not corrupting the society which contains all categories of persons, infants, minors, young, adult, aged, male, female, ethnic, religious etc. by his conducts all in the name of exercising his right of expression.

Having referred to the above Constitutional provisions which allow and or authorize the derogation from the right to freedom of expression as conferred by section 39(1) (supra), some laws have been stated by the legal academic and researchers such as Ese Malemi (op cit) at page 169- 170 to include: (1) The Obscene Publications Act, CAP. 51, of 1961 (now law of Lagos State, 2003), (2) the Criminal Code Act, 2004; (3) the Penal Code Law, CAP. 89, Laws of Northern Nigeria, 1963 (also note the Penal Code Act of the Federal Capital Territory-Abuja, 2007); (4) The Children and Young Persons (Harmful Publications) Act, now Law of Lagos State, CAP. 52, 1961, now CAP. 26, Lagos State, 2003 (also note The Children and Young Persons (Harmful Publications) Act, Laws of the Federal Capital Territory-Abuja, 2007); (5) The Cinematograph Act; 2004; (6) The National Broadcasting Commission Act, 2004, Nigerian Communication Commission Act, CAP. 75, 1992; (7) National Film and Video Censors Board Act, No. 85, 1993 (bracketed words on emphasis are the writer of this papers’). It is the writer of this paper’s submission that the CCA, shall form a list of the laws on obscene publications in Nigeria. Very important to note is the position that the CCA does not bind the States of the Federation and the provisions shall not cover the field of any other State laws on the subject matter as a Federal Law as it bothers on crimes and it has been argued by the writer of this paper in some other articles and at the enactment of the CCA as published in Nigerian Pilot Newspaper in 2015, however, all these will only amount to legal opinions and academic discourse which do not pertain to life issues in the court of law except to such extent that the Attorney-General of either a State or all the States’ Attorney-General would summon the courage to seek judicial interpretations in Courts so as to have a judicial precedent to hold clearly and specifically on.

The CCA is ‘An act to provide for the prohibition, prevention, detection, response, investigation and prosecution of cybercrimes; and for other related matters, 2015.’.

Under the CCA, there is a provision on child pornography and related offences, which makes it an offence for any person to use any computer to commit the offences stated under the section. Also, section 24 of the CCA provides on Cyberstalking thus 24. (1) 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’. From the above provisions, it is clear that publication of obscene information by means of computer systems or network is a cybercrime.

 Also, the word ‘computer system’ has been defined in section 58 of the CCA as follows: “computer system” refers to any device or group of interconnected or related devices, one or more of which, pursuant to a program, Performs automated or interactive processing of data. It covers any type of device with data processing capabilities including, but not limited to, computers and mobile phones. The device consisting of hardware and software may include input, output and storage components which may stand alone or be connected in a network or other similar devices. It also includes computer data storage devices or media;’. Also see the definition of ‘computer’ under the section 58 CCA. From the definitions above, computer has been defined to include all means of computer system including mobile phones.

It is therefore submitted that publication of obscene materials by social media too is covered by the criminalization section of the CCA.

It is therefore surprising that obscene publications still find their ways on computer system, on-line and by various social media and the appropriate authorities find nothing to prevent these in the public interest and morality. It remains a great concern why the appropriate authorities have not succeeded in blocking both local and international persons and their sources from publications of obscenity under the CCA.

Finally, though there is much to say on this subject matter which is beyond what this paper could contain, the National Security Adviser, the CyberCrime Advisory Council, the Attorney-General of the Federation, the National Film and Video Censors Board, the National Broadcasting Commission and other law enforcement agencies are advised to work together to ensure an obscenity-free Nigerian society. More so, almost all the law enforcement agencies have a CyberCrime Unit/Department established in furtherance of the enforcement of the provisions of the CCA.