One fine afternoon a few years back, I received a distress call from a friend. Let’s call her Ama. Ama called on behalf of another young lady; let’s call her Ewuresi. Ewuresi had sent her nudes to her newly found online lover. Her so-called beloved was now demanding money, or he would publish her nudes online. A disturbed Ewuresi contacted Ama for help. Ama made the SOS call that afternoon for “legal advice.” Ewuresi could not risk having her photos leaked online, especially because she was an identical triplet. Her sisters' reputation was also at stake!
What should she do next? Should she give in to the guy’s monetary demands? Should she report to the police? Will the police promptly act if she reports? What if the guy publishes her nudes either way? What would that mean for her sisters? These and more were the questions Ama and Ewuresi had. But as a lawyer, I had questions of my own, one being: what does the law in Ghana say about Ewuresi’s situation?
Ewuresi’s dilemma falls broadly under what we call non-consensual pornography - a form of cyber sexual harassment. Specifically, her situation may be labeled as revenge pornography or sextortion. Revenge porn is often where a scorned ex-lover discloses the sexually explicit image of their partner. Apart from being induced by heartbreak, a revenge porn perpetrator may be motivated by earnings, notoriety or sheer amusement. Sextortion is where a perpetrator threatens to distribute sexually explicit images of a person. In Ghana, there are at least three revenge porn posts on social media daily. Women and girls are often the primary victims of revenge porn and sextortion; therefore, I have previously argued to frame these offenses as gender-based violence (GBV).
At the time Ewurasi’s incident came to my attention, there was no express legal framework on non-consensual pornography in Ghana. Elsewhere, I demonstrated how, depending on the details of each case, a legal action could be initiated by relying on the right to privacy and dignity provision in the 1992 Constitution, traditional criminal laws on obscenity, indecency and sexual exploitation in the Criminal Offences Act of 1960, and child pornography provisions in the Electronic Transactions Act of 2008, where the victim is below 18 years. Additionally, a person could explore remedies for emotional distress under tort law, limited copyright claims where the victim took the photos, and narrow claims under the Domestic Violence Act. Essentially, finding liability for non-consensual pornography at the time within the existing laws meant taking the tide while it served. So, I directed Ewuresi to report to the police. Thankfully, shortly after reporting, the police arrested Ewuresi’s beloved-turned-blackmailer. He had been on their wanted list for a while for similar sextortions. A few years down the line, Ghana’s parliament passed the Cybersecurity Act of 2020, containing some express provisions on non-consensual pornography in sections 67 and 68. While the provisions are not exhaustive, Ghana’s attempt is a commendable step toward investing in the prevention of gender-based violence in cyberspace.
This year’s 16 days of activism theme is to unite and invest in preventing violence against women and girls. It is a reminder and a call to all governments around the world to invest in legal and other robust frameworks that will prevent and eliminate all forms of violence against women and girls, including those that occur online. Let’s orange the cyber world!
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