Kaine Agary

Typically, what you do behind closed doors remains behind closed doors. With technology – internet, smartphones, social media – people are sharing more of their private lives and we consume with interest and appropriate emoticons. Sometimes, however, the material that makes it into the public domain was never intended for public consumption. Revenge porn refers to the publication of sexually explicit material (photograph, video) without the consent of the parties depicted in the material.

I have said before that social media is not the place to seek justice when a person has been injured. We may discuss the matter for days or weeks with our moral indignation, but no matter how elegant the turn of words on the issues, they give no remedy to the injured save for, maybe, moral vindication of their rights.

A few weeks ago, a sex video allegedly involving a former beauty queen was released to the public. From the subsequent reaction we can assume that the video was released without the consent of at least one of the parties in the video. So we are all consumed by the morality of the acts portrayed in the video recording of what we assumed was intended for personal/private pleasure and consumption. We also do what we do to victims of sexual assault, which is blame the victim. Why did said victim allow herself to be videotaped? What was said victim involved in such acts in the first place? On and on, so much that the victim is shamed into walking away from vindicating their rights under civil and/or criminal law.

But where would a victim look to for remedy?

Chapter 21a of the Criminal Code covers Obscene Publications. Section 233D provides:

(1) Subject to the provisions of this Chapter, any person who, whether for gain or not, distributes or projects any article deemed to be obscene for the purposes of this Chapter, commits an offence punishable on conviction by a fine not exceeding four hundred naira or by imprisonment for a term not exceeding three years or by both.

(2) A person shall not be convicted of an offence against this section of this code if he proves that he had not examined the article in respect of which he is charged and had no reasonable cause to suspect that it was such that his publication of it would make him liable to be convicted of an offence against this section of this code.

Section 233C sets out the Test of Obscenity which may prove problematic in these cases. Subsection 2 states that:

“The provisions of this section of this code shall extend to any article of two or more distinct items the effect of any one of which is such as to tend to deprave and corrupt, but nothing in this section shall apply to exhibitions in private houses to which the public are not admitted or to anything done in the course of television or sound broadcasting.”

Although the distribution of obscene materials does not have to be for gain for it to constitute a criminal offence, a case for revenge porn may turn on the requirement in the Test of Obscenity for “any article of two or more distinct items…”. The materials have to pass the Test before Section 233D kicks in.

Section 37 of the 1999 Constitution provides that, “The privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected. Could a victim of revenge porn call on the courts to vindicate their right to privacy under Section 37?

These considerations are merely a game in hypotheticals until a live case makes it to the courts, the lawyers make their arguments and the judges apply the existing rules and set down precedents.

The UK only last year passed legislation to deal with revenge porn. The legislation allows for the prosecution of someone of publishes/distributes revenge porn and intends to cause distress to a party portrayed in the offending material. This does not mean that revenge porn cases were not being prosecuted before last year. Lawyers successfully made use of existing obscenity laws to prosecute such cases and victims also had civil remedies under the right to privacy.

In traditional obscenity laws, any person who shares offending material could be held liable, which has led to the absurd result that even the victim can be charged with the same crime. In the United States, there have been several cases of teenagers being charged with child pornography and the distribution of pornography in situations where sexting between friends and couples has taken a wrong turn. In those cases, every person who received and forwarded the materials where part of the distribution of the materials. The new UK legislation requires that the perpetrator must intend to cause distress to the victim. This requirement, which has been criticised, would protect those who have no connection with the victim and just post or forward the material for the fun of it.

One can argue that our laws are lagging behind societal development but we cannot truly know how far we are lagging behind until such cases are tried to reveal the extent to which we can stretch the boundaries of current legislation enacted before digital technology became an integral part of our lives.

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