Revenge Porn in Nigeria; The Legal Effect – Victoria Bassey

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Revenge porn also known as non-consensual pornography, is the distribution of one or more sexually explicit photos of someone else, without the subject’s permission. The sexually explicit images or video may be made by a partner of an intimate relationship with the knowledge and consent of the subject, or it may be made without his or her knowledge. The possession of the material may be used by the perpetrators to blackmail the subjects into performing other sex acts, to coerce them into continuing the relationship, to punish them for ending the relationship, or to silence them.

One woman paid $200 every month for four years to an ex-boyfriend so he wouldn’t publish intimate pictures of her, her colleague told AFP. Another had her photographs stolen by a hacker and sold her telephone and jewelry to pay him off. A third developed an online affair with a man, who then threatened to forward her pictures to her husband unless she slept with him.

In Nigeria, a 300-level Babcock student has gone viral as a victim of revenge porn. She can seek legal remedy through civil or criminal action. First of all, Every Nigerian citizen is guaranteed a right to private and family life under section 37 of the Nigerian Constitution 1999 (as amended). The student can therefore commence an action in court for the enforcement of her fundamental human right of privacy.

Copyright: Copyright refers to the legal right of the owner of intellectual property. In simpler terms, copyright is the right to copy. This means that the original creators of products and anyone they give authorization to are the only ones with the exclusive right to reproduce the work.

“80% of revenge porn victims took the pictures themselves.” Which means they own the copyright to the image. Which means that when their exes submit the photo to a revenge porn website, the interim copies and subsequent display of those selfies infringes on victims’ exclusive copyrights to reproduce and display their work. Copyright claims are now being used as a means of seeking damages for the emotional distress and reputational harm caused by ‘Revenge Porn’. Take the case of Jane doe v David K. Elam II and Mr & Mrs Allen v Todd Zonis, where the Court awarded the whooping sums of $6.4 million and $8.9 million respectively. The Californian student had been dating a man for approximately six months after meeting him online. Things soon turned sour and photos were uploaded onto several ‘Revenge Porn’ sites without her consent. Extremely embarrassed, and concerned about her budding legal career, Jane filed a copyright lawsuit seeking damages from her ex for violating US copyright law.

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A victim of revenge porn can also seek remedy through The Cybercrimes Act of Nigeria 2015, which has covered the issue of revenge porn.

Section 24 of the Act provides;

(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.

Paragraph A in particular deals with revenge porn. The said provision however has a lacuna as it only criminalizes the distribution of these prohibited materials by computer systems thereby leaving out distribution of paper copies and distribution by other methods that do not include transfer from one computer device to another.

In 2018, The Federal High Court sitting in Ado-Ekiti, Ekiti State sentenced one Ayan Olubunmi to two years in prison and a fine N500,000 for posting nude pictures of his ex-lover, Arare Monica, on Facebook. Ayan had threatened to post nude pictures of his ex-girlfriend, Monica, on social media sometime in 2017, when the lady informed him she was no longer interested in the relationship.

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Monica, a single lady, had pleaded with Ayan, who is married with children, not to carry out his threat and he had requested for a sum of N200,000 as inducement for him to rescind his decision. Ayan had, however, posted the nude pictures of Monica as he threatened when the lady could not give him the money he demanded.

Delivering his judgement, Justice Taiwo Taiwo said Ayan was found guilty of committing the crime after evidence made available to the court was found as “incontrovertible proof that he willfully and maliciously committed the crime”.

Describing the crime as disgraceful, very despicable and barbaric, Justice Taiwo said Ayan is guilty of violating Section 24 (1) of the Cyber Crime Act, 2015 of the Constitution of the Federal Republic of Nigeria as amended. The judge therefore sentenced the culprit to two years’ imprisonment, and a fine of N500,000 to be paid into the coffers of the Federal Government. “I find this act of the convict highly disgraceful, very despicable and barbaric to say the least. He has behaved true to the saying that hell knows no fury than  a lover ‘s scorn. I must say that the defendant who has a wife and children at home could find it easy to demean and embarrass a woman who was having an amorous affair with him.”

“It is an act of meanness to attempt to, if he has not already tarnished the image and reputation of Asare Monica.” The presiding judge added that he had been lenient in sentencing the culprit as the punishment for his crime attracted a fine of N7 million and a three-year jail term according to the Cyber Crime Act.

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In this case which was between the Attorney General of the Federation, Abubakar Malami, SAN and Ayan Olubunmi, The judge lamented that the law does not make provisions for compensation for the victim. This is true as it only issues a punishment of N7million and three years jail term. However, if a victim decides to commence a civil action for the enforcement of their copyright, they might get compensated. Victims can use the takedown provisions Digital Millennium Copyright Act (“DMCA”) to de-index websites with their photos from search engines like Google and ask the websites themselves to remove the photos, all without having to hire a lawyer.

Meanwhile, Section 170 of the criminal code Act also provides; 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 misdemeanour and is liable to imprisonment for one year.

From the above provision it is clear that this applies to anything sent by post. However, this section, particularly paragraph (b) relates mostly to revenge porn although it applies only to messages by posts if we are adopting the literal rule.

Victoria Bassey, is a graduate of Law from the University of Calabar (vykea77@gmail.com)

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