Media Censorship in Nigeria: Implication of the Regulation of Social Media and Digital Rights

By: Adedoyin Adetumininu Fadare

“The world today revolves around two things: smartphone and data, smartphone and…, and the young ones we are talking to do not even watch television, don’t listen to the radio, they don’t do newspapers. And you will be shocked, that if you start arguing with your daughter or son, she will be quoting as a bible, the social media. So, Mr Chairmen, sir, the long and short sir, is that I have said it that, we need a policy on social media; we need also to empower the various ministries, especially the Ministry of Information on how to deal with social media. And we need a technology to be able to shut down at will social media when it becomes a menace to the country’s security. (Sic)”

Lai Mohammed, Nigeria’s Hon. Minister of Information and Culture (2020)

 

Introduction

It is trite to observe and mention that where the essence and usage of a thing are unknown, abuse, misapplication, and exploitation is inevitable, and the inability to extract such a thing for one’s benefit will be next to impossible, this is the typical case scenario and exactitude of the Nigerian experience with regards to Rights. Many have been, are being, and will be browbeaten and broken, conned and cheated, exploited and ensnared, imprisoned and ill-used, subjugated and spellbound, tricked and trapped all for their incapability to know and master their rights. These rights which are legal entitlements as opposed to duties and obligations which bestow upon a person a moral, social or legal tie to do something. From the different ranges of rights, digital rights have the propensity to be highly disregarded in Nigeria.[1] Several human rights have been identified as relevant concerning the Internet, and this is where digital rights can be categorised. These rights include freedom of expression, data protection and privacy and freedom of association. Furthermore, the right to education and multilingualism, consumer rights, and capacity building in the context of the right to development have also been identified.[2] This article will describe what digital rights are by international standards. It will further examine how far social media regulation has come in the country together with its implications.

What are Digital Rights?

Digital rights are human rights in the internet era. The rights to online privacy and freedom of expression, for example, are extensions of the equal and inalienable rights laid out in the United Nation’s Universal Declaration of Human Rights[3]. According to the United Nations (UN), disconnecting people from the internet violates these rights and goes against international law.[4] Digital rights are considered to be the same fundamental human rights that exist in the offline world – but in the online world. In 2012 (and again in 2014 and 2016), the UN Human Rights Council agreed in a resolution that the “same rights that people have offline must also be protected online.” This means that rather than the United Nations seeking to define new rights for the online space, they have recommended extending existing human rights to cyberspace.[5] In recent times, social media have been a platform where this right has been highly exercised. Social media allow information to be shared along with friends or followers; they enable discussion to take place around such shared information. Users of such sites do more than just passively consume information, in other words: they can also create it, comment on it, share it, discuss it, and even modify it. The result is a shared social environment and a sense of membership in a distributed community.[6]

International Treaties Regulating Digital Rights in Nigeria

The right to freedom of expression and opinion can be found in nearly all human rights treaties. Of particular significance are:

  1. African Declaration on Internet Rights and Freedoms
  2. Universal Declaration of Human Rights
  3. International Convention on Civil and Political Rights
  4. International UN resolutions and instruments on cybersecurity.

African Declaration on Internet Rights and Freedoms (ADIRF)

The ADIRF stipulates that the Internet is an enabling space and resource for the realisation of all human rights, including the right to hold opinions without interference, the right to freedom of expression and information, the right to freedom of assembly and association, the right to freedom of thought, conscience and religion, the right to be free from discrimination in all forms, the right of ethnic, religious or linguistic minorities to enjoy their own culture, to profess and practise their religion, or to use their language, and economic, social and cultural rights.[7]

Universal Declaration of Human Rights (UDHR)

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.[8]

International Convention on Civil and Political Rights (ICCPR)

The ICCPR provides that everyone shall have the right to hold opinions without interference.[9] More so, this Convention provides that everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or print, in the form of art, or through any other media of his choice. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

  1. For respect of the rights or reputations of others;
  2. For the protection of national security or public order, or of public health or morals.[10]

The Regulatory Trajectory of Digital Rights and Disinformation in Nigeria

The Nigerian Constitution[11] principally supports internet freedom in Nigeria within the broad principles of International Human Rights Law, particularly the ICCPR because of its broad applicability, legitimacy and the range of human rights it protects: most obviously privacy[12] and freedom of expression[13]; but also freedom of association and assembly[14], and thought conscience and religion.[15] Despite this, Nigeria does not currently have specific legislation to protect digital rights and counter disinformation.  However, it does have a proposal for such legislation — the Protection from Internet Falsehoods and Manipulation and Other Related Matters Bill 2019. Besides, Nigeria has two laws that include restrictions on disinformation: The Cybercrimes (Prohibition, Prevention, etc.) Act 2015 and the Criminal Code, 1990.   The proposed law and two pieces of legislation still raise significant concerns for freedom of expression in Nigeria. They are loosely-defined in their scope, meaning that authorities could interpret them as giving them the power to restrict a wide range of speech; and they pursue aims which would not be considered legitimate according to international human rights standards. These laws also carry penalties which risk being disproportionate in their severity and resulting in a chilling effect on freedom of expression.[16] In 2020, the Economic Community of West African States’ (ECOWAS) Court determined that elements of Nigeria’s Cybercrimes Act violate the right to freedom of expression under regional and international human rights law and ordered the Nigerian government to either appeal or amend it. The government is yet to act on this.[17]

The initial attempt to regulate digital rights and social media in Nigeria was through the “Frivolous Petitions (Prohibition) Bill 2015” which sought to be the instrument to regulate social media. It was introduced in 2016 during the 8th National Assembly but it did not live to see the light of the day. Similarly, the same year, the President of the Federal Republic of Nigeria declined to assent to the “Digital Rights Bill 2016”, a law that ought to provide for the protection of the human rights online, to protect internet users in Nigeria from infringement of their fundamental freedoms and to guarantee the application of human rights for users of digital platforms and/or digital media and related matters. Interestingly, a reason for the decline as noted by the president mentioned the Bill covered too many technical subjects and fails to address any of them extensively. The Digital Rights Bill was supposed to be one that protected the fundamental rights of Nigerians on the Internet and ensured their safety and well-being.[18]

In 2019, “The Protection from Internet Falsehood and Manipulation Bill 2019”, was presented before the National Assembly, it has been projected that if the bill is passed, it will give enormous power to the government to clamp down on critics and also shut down the internet. Astonishingly, the  Hon. Minister Lai Mohammed vehemently denied that this bill was never presented before the National Assembly.[19] This bill which has been the most controversial is targeted at preventing the transmission of false statements/declaration of facts; to suppress the financing and support of online locations that promote the transmission of false statements/declaration of facts; to enable measures to be taken to enhance disclosure of information concerning paid content directed towards a political end amongst other objectives.

Why Has “Regulation” Now Become Important and the Implication?

From the perspectives of the Nigerian government, increased spread of fake news, hate speeches, extremism, and organised protests, all widely enabled by social media could lead to uncontrollable unrest. And what better way to nip these menaces in the bud than to establish restrictive policies?[20] Before November 20, 2019, The Federal Government of Nigeria through the Honourable Minister of Information told a meeting of the Guild of Corporate Online Publishers in Abuja, days before The Protection from Internet Falsehood and Manipulation Bill 2019 passed second reading, the minister emphasised that the government was intent on seeing the bill become a law to clamp down on the proliferation of hate speech and fake news. He reiterated the government’s position at different times. He remarkably noted that no responsible government will sit by and allow fake news and hate speech to dominate its media space because of the capacity of this menace to exploit our national fault lines to set us against each other and trigger a national conflagration.[21]

However, on the other hand, as expected, civil organisation have raised awareness on the impending issues these legislations threaten[22] On March 4, 2020, Amnesty International Nigeria and 109 Nigerian civil society organisations called on the Senate to reject the Anti-Social Media Bill, because it is unconstitutional and inconsistent with Nigeria’s international obligations[23]. This remonstration prompted an articulate  #NotoSocialMediaBill Twitter campaign and letters to the Nigerian government. However, the President of the Federal Republic of Nigeria noted that he would not assent to any legislation that may be inconsistent with the constitution of Nigeria as believes free speech is central to democratic societies.[24]

What is the Way Forward?

Nigerian lawmakers and regulatory bodies are drafting new legislation, to come to terms with the new reality of the Internet and its many provisions. While previously enacted legal frameworks can be easily applied in an online context, others require substantial adaptation. It is thus critically important to ensure that any legislation, which impacts on freedom of expression, is consistent with recognised international human rights standards. This is particularly important since a significant part of the internet’s value, as a medium of expression, is its open and borderless nature. This value can only be preserved through a regulatory framework that balances issues of security or protection with those of privacy and rights.[25]

As Saul Raw, said, “the greatest threat to modern society may not be fake news, but the weaponization of “fake news” by the state against free speech and citizens’ rights”. Government interference can only be made possible if there is good communication between concerned civil societies and policymakers. And it is important to mention that a government that limits online freedom is one that impedes the creativity of its people; to fully harness the empowerment benefits of the Internet, people must be allowed to communicate freely online.

 

Adedoyin is a Tech-Lawyer with passion for Digital Rights. He can be reached at fadareadedoyin@gmail.com

[1] Adedoyin Fadare, The Reality of Employee Rights in Nigeria: Laws Regulating the Labour Rights, Lambert Academic Publishers

[2] Pennsylvannia State University, Digital Rights, https://psu.pb.unizin.org/ist110/chapter/12-3-digital-rights/ accessed November 16, 2020

[3] United Nations, Declaration of Human Rights https://www.un.org/en/universal-declaration-human-rights/  accessed on November 16, 2020

[4] World Economic Forum, What are your Digital Rights https://www.weforum.org/agenda/2015/11/what-are-your-digital-rights-explainer/ accessed on November 16, 2020

[5] United Nations, Government Policy Internet Must be Rights-based and User-centred https://www.un.org/en/chronicle/article/government-policy-internet-must-be-rights-based-and-user-centred accessed November 16, 2020

[6] John Samples, Why the Government Should Not Regulate Content Moderation of Social Media

https://www.cato.org/publications/policy-analysis/why-government-should-not-regulate-content-moderation-social-media#endnote-004 accessed on November 16, 2020

[7] https://africaninternetrights.org/en/declaration accessed on November 16, 2020

[8] Article 19 UDHR

[9] Article 17(1) ICCPR

[10] Article 19(3) ICCPR

[11] Constitution of the Federal Republic of Nigeria 1999 (as amended)

[12] Section 37, CFRN 1999 (as amended)

[13] Section 39, CFRN 1999 (as amended)

[14] Section 40, CFRN 1999 (as amended)

[15] Section 38, CFRN 1999 (as amended)

[16] www.disinformationtracker.org accessed on November 16, 2020

[17] http://saharareporters.com/2020/07/11/group-praises-ecowas-courts-decision-cybercrime-act-nigeria accessed on  November 16, 2020

[18] https://www.premiumtimesng.com/news/headlines/321189-buhari-declines-assent-to-digital-rights-bill-four-others.html accessed November 18, 2020

[19] https://guardian.ng/news/nigeria/national/despite-evidence-lai-mohammed-denies-existence-of-social-media-bill/ accessed November 16, 2020

[20] How Not to Regulate Social Media https://techpoint.africa/2018/07/17/social-media-regulation-africa/ November 16, 2020

[21] Ibid 18

[22] https://www.premiumtimesng.com/news/more-news/380410-nigerian-csos-kick-against-social-media-bill.html accessed November 16, 2020

[23] https://twitter.com/AmnestyNigeria/status/1235158753961562113 accesed on November 16, 2020

[24] Quartz Africa,  https://qz.com/africa/569372/nigerias-social-media-bill-follows-a-trend-of-african-governments-keeping-tabs-on-civil-society/

[25] Babatunde Okunoye & Tomiwa Ilori, State of the Nation: Status of Internet Freedom in Nigeria  https://paradigmhq.org/wp-content/uploads/2018/05/State-of-the-Nation-Status-of-Internet-Freedom-in-Nigeria-2016.pdf accessed November 16, 2020

 

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