Is Online Abuse a Criminal Offence or Expression of Freedom?: The Position of the Law
By Sani Abdullahi
Introduction
Mr. Olumuyiwa Adejobi, the Nigeria Police Force PRO made a startling post on 20th December 2024 on X: “Raining direct curses on someone online is cyberbullying, not expression of freedom or criticism. And cyberbulling, which is even different from defamation, is a criminal offence and punishable. Be guided.”
Therefore, if you are in the habit of abusing people online, whether as a habit or infrequently, you might want to read this article to the end. The thorny question of whether raining direct curses online is a criminal offence or expression of freedom has been a pressing topic since the Force PRO made the post.
Against this background, I will analyse the position of the Force PRO to see if it can stand in the light of our constitutional jurisprudence, statutes, and case laws.
ONLINE ABUSE AS A CRIMINAL OFFENSE
Generally, online communication is regulated by the Cybercrime (Prohibition, Prevention, etc.) Act, 2015. Specifically, Section 24 (2)(a) of the Cybercrime (Prohibition, Prevention, etc.) Act, 2015 provides that “Any person….who knowingly or intentionally transmits or causes the transmission of any communication through a computer system or network….to bully, threaten or harass another person, where such communication places another person in fear of death, violence or bodily harm or to another person.”
Before detailing the nexus of an abuse or “direct curse” as the FPRO put it and criminal offence, I will like to be specific and expound the word ‘curse’. An apt explanation was offerred by Honorable Justice Oguntade JCA in OJO v. ADEYEYE (2005) 12 NWLR (Pt. 938) 395 thus: “A curse is not a physical thing that can be seen or touched, but its effects can be felt… It is an invocation of evil or misfortune on a person, and it can be verbal or written… A curse can be expressed directly or indirectly, and it can be intended or unintended.”
Going by Justice Oguntade’s submission, which is premised on Section 24 (2)(a) of the Cybercrime (Prohibition, Prevention, etc.) Act, 2015, it is clear that abusing someone online is an offense. Having established this, the begging question remains: is raining direct curses on someone online a criminal offense?
It suffices to state that under Nigeria’s criminal law, offences and crime are defined in statute, which is usually enacted by the legislative arm of Government, and is subject to judicial interpretation. However, Section 36 (12) of the 1999 Constitution (as amended) has sufficiently answered the above thorny question by stating that an act can only be deemed a criminal offence if it expressly and specifically defined as such under a written law. The section states:
“Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefor is prescribed in a written law; and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law.”
It follows, therefore, that not every instance of online abuse or cursing constitutes a criminal offence. For liability to arise, the abuse must be intentional. This threshold was established in UGWUONYE v. STATE (2018) LPELR-43913(CA), where the court held:
“The intention to harass or intimidate is a crucial element in determining whether an offence has been committed… In the absence of such intention, the offence cannot be sustained.”
Similarly, the court noted: “….. a curse or insult online that does not create a sense of imminence or urgency may not constitute a criminal offense.”
In light of the foregoing, it is unequivocal that considering online cursing as a criminal offense is utterly flawed and misguided.
IS ONLINE ABUSE AN EXPRESSION OF FREEDOM OF SPEECH?
The Internet and social media have empowered individuals to express themselves freely. However, freedom of expression is not absolute under Nigerian law.
While Section 39(1) of the 1999 Constitution (as amended) guarantees that:
“Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.”
Section 45(1) provides that this freedom can be restricted if necessary for public order, morality, or the protection of the rights of others. The provision states:
“Nothing in Sections 37, 38, 39, 40, and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society for the purpose of protecting the rights and freedoms of others.”
The foregoing constitutional provisions aligns with the Cybercrime Act, and they all establish that freedom of expression, though guaranteed, has its limitations. This position is corroborated by Honorable Justice Muhammad JSC in INSPECTOR-GENERAL OF POLICE v. ALL NIGERIA PEOPLES PARTY (2008) 12 NWLR (Pt. 1102) 251, 273:
“The right to freedom of expression is not absolute and can be restricted in certain circumstances, such as where it is necessary to protect the rights of others or to maintain public order.”
Another prominent case that clarifies the issue is AVIOMOH v. C. O. P (2022)4 NWLR (Pt. 1819) 69 where the court explicitly held thus:
“The right to freedom of expression guaranteed by section 39 of the Constitution is by section 45 subject to any law reasonably justifiable in a democratic society for the purpose of protecting the(b)rights and freedom of other persons.” (P. 116, para. G)
From the discussions, therefore, online abuse, particularly direct curses that harm or distress others, cannot be justified as a legitimate exercise of freedom of expression.
CONCLUSION
Based on the foregoing analysis, it is my humble submission that raining direct curses on someone online is neither fully a criminal offence nor a protected exercise of free speech. As I have discussed in the preceding sections, the position of the law on the matter is as follows:
- Online abuse becomes a criminal offence only when it is intended to threaten, harass, or instill fear of violence, death, or bodily harm as stipulated in Section 24(2)(a) of the Cybercrime Act.
- Freedom of expression is not an absolute right—it is subject to restrictions, particularly when it infringes on the rights and dignity of others, as provided in Section 45(1) of the Constitution. Justice Idigbe JSC (of blessed memory) rightly explains it in NEWSWATCH COMMUNICATIONS LTD v. ATIKU ABUBAKAR (2005) 11 NWLR (Pt. 936) 413, 414: “Freedom of expression is not a license to defame, to injure, or to destroy the reputation of others.”
About the Author
Sani Abdullahi is a student of Faculty of Law, Ahmadu Bello University, Zaria, Kaduna State of Nigeria. 09125630290 or email- saniabdollahy@gmail.com.
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