In this report, Ise-Oluwa Ige examines the various steps taken by the Federal Government since 2015 to regulate social media and other online platforms in Nigeria without success with a focus on the latest draft Code of Practice released by the National Information Technology Development Agency, NITDA, and the clouds of dust it is presently generating.
A fresh plan by the Federal Government to regulate the social media and other online platforms through adoption of a proposed Code of Practice for Interactive Computer Service Platforms /Internet Intermediaries, appears to have set the country on fire.
This is notwithstanding the claim by the government that the Code of Practice was developed in consultation with Civil Society Organisations, CSOs, and expert groups.
Less than 24 hours after the document was released, a number of stakeholders had dismissed the proposed code of practice as a ploy to regulate social media and other online platforms through the backdoor by circumventing the legislative process. They are urging the government to backtrack on the plan or face the consequences.
Earlier efforts by the Federal legislature to regulate social media
Towards the end of 2015, the government through lawmakers from the National Assembly started the campaign against the abuse of social media and attempted a legislation to regulate it.
Vanguard Law and Human Rights reports that the then Deputy Senate Leader, Senator Bala Na’Allah had sponsored a clumsy bill for an Act to prohibit Frivolous petitions and other matters connected therewith.
But the bill generated a lot of controversy following some contentious provisions contained in it.
For instance, the bill made petitions against the conduct of any person for the purpose of an investigation, inquiry and or inquest without a duly sworn affidavit in the high court of a state or federal high court unlawful while it prohibited any government institution, body, or agency from using petitions that did not meet the requirements of sworn affidavit.
Many Nigerians criticised the bill for more reasons than one and asked that it be withdrawn without any delay.
But Na’Allah in an interview had explained that he sponsored the bill to sanitize information flow on social media.
“The social media is a very valuable platform for dissemination of information and it has helped this country greatly but of recent, we have seen some few ‘bad eggs’ who have turned it into a business venture.
“They collect money from people and go into the social media to tarnish the image of their political opponents. It is against this backdrop that we felt people should behave responsibly on the platform.
“They ask you to bring money or they post things that will portray you in bad light or alternatively, they collect money from other political opponents and post unfavourable things about you. This is not going to augur well for this country.”
Na’Allah denied that the issues between the immediate past President of the Senate, Dr. Bukola Saraki and Saharareporters.com influenced the bill as he said he was until recently, ignorant of any issue between the two.
Following opposition from civil society organisations and other stakeholders, the Senate withdrew the controversial bill on May 17, 2016.
That was after the report of the upper chamber’s Committee on Human Rights and Legal Matters which made it clear that the bill actually amounted to violation of citizens’ rights, and contradicted extant laws, imposing duty of investigation on petitioners and serving as stumbling block to the fight against corruption.
Almost two years after the first bill to regulate social media was shot down, another bill for protection from Internet falsehoods and manipulation was sponsored by Senator Mohammed Sani Musa, representing Niger East Senatorial District.
The bill proposed a framework and system of regulation, control and conduct, the use of the Internet and various social platforms in the transmission of information in Nigeria.
According to the lawmaker from Kaduna State: “The bill is not an attempt to stifle free speech or dissenting views; it is rather an opportunity to address a growing threat which, if left unchecked, can cause serious damage in our polity and disrupt peaceful coexistence.”
He stated that much as the internet has numerous benefits, it was and is still also being used for the purpose of manipulating information and spreading falsehood.
The lawmaker noted that state and non-state actors engaged in geo-political interests and identity politics, use internet falsehood to discredit governments, misinform people and turn one group against another.
He added that while the phenomenon of internet falsehood and manipulation was, and remains a serious global challenge, a country like Singapore has taken measures to curb the proliferation of fake news and disinformation with the passage into law of the Proliferation from Online Falsehoods and Manipulation Act 2019.
Between the time the bill was sponsored and February 2020, there emerged another groundswell of opposition. It was not surprising that in March 2020, about 135 civil society organisations urged the Senate to withdraw the social media bill and the bill also ‘died.’
Efforts by the executive to regulate social media
Following the opposition to moves by the National Assembly to regulate social media and other online platforms through primary legislation, Vanguard Law and Human Rights reports that the Minister of Information, Alhaji Lai Mohammed, had consistently called for a meeting of stakeholders to agree on modalities for regulating the social media, but was rebuffed.
The government had argued that it had no doubt that the emerging modern media platform had played a strong role in promoting information sharing, strengthening democracy, and building networks of relationships but that without supervision or control, the nation risked serious havoc.
Lai Mohammed said the farmers-herdsmen clashes of 2017 was largely fuelled by fake videos and pictures that were circulated on social media platforms and that following a false alarm raised by a popular entertainer, five students of the College of Education in Gidan Waya in Kaduna State were murdered by herdsmen and that there was almost reprisal attack before it was discovered that it was fake news.
Senior Special Assistant to the President on Media and Publicity, Garba Shehu, had, at a forum also said the entire Kasuwan Magani saga in Kaduna State in 2018 that resulted in the death of more than 50 people was because someone posted misleading information on WhatsApp that went viral.
According to Lai Mohammed, while some had argued that our constitution already has laws in libel, but that the laws of the ‘60s never anticipated social media.
“No government has the right to muzzle freedom of speech. We don’t support the taking of lives as punishment. However, we must regulate the social media in a manner that it does not become a purveyor of fake news and hate speech.
‘We will not fold our arms and allow purveyors of fake news and hate speech to use the social media to destabilise the country,” adding that all countries in the world were also trying to make laws to check the excesses and control the situation.
Lai Mohammed therefore declared in November, 2019, that the government was fully aware of mounting opposition to the idea of regulating the social media but that no amount of criticism would stop it.
“As a matter of fact, we have already put in motion the machinery for this. We have written letters to the major stakeholders who would nominate representatives and we are going to sit down together to decide on how best to confront this menace,” he said.
The minister noted that the government had the responsibility to keep the country together, therefore, social media would not be left alone to destabilise the nation.
He said the government welcomed the debate that had followed the decision and announcement to sanitise the social media space and the airwaves.
“We are glad about the criticism because what we set out to achieve is to bring the matter to the front burner of discourse.
We are not under any illusion that the people will take this hook, line and sinker.
“We are, however, glad that there are more people who believe that the social media poses imminent danger to the unity of Nigeria, especially as they have become merchants of fake news and hate speech,” he said.
The minister noted that those who had opposed the regulation of the social media had not denied the fact that the platform was being used by purveyors of fake news and hate speech with grave consequences.
“Their concern largely, which is unfounded, is that it might lead to the stifling of the freedom of press or gagging the media. However, we want to make it clear that it is not our intention to do this. The only people who are afraid of the decision to sanitise the social media and the airwaves are the purveyors of hate speech and fake news.
“It must be put on record that Nigeria is not the only country that is doing something about this.
“Germany, Egypt, Russia, India and the UK are all doing something about regulating the social media platform,” he said.
Mohammed expressed concern that the Nigeria Union of Journalists and other media professional bodies that were supposed to support the regulation were kicking against it.
“This is amusing, because they should be glad as they are the ones we are protecting.
“We heard all kinds of threat, some even went as far as calling for the removal of the minister. Let me assure them that the minister is not perturbed by this and we are focused. No amount of intimidation, sponsored articles in any form is going to stop us from regulating the social media.
“This is not just a menace to the government, many people have committed suicide because their reputation have been destroyed by the social media,” he said.
Emergence of FG’s Draft Code of Practice for Interactive
Computer Service Platform/Internet Intermediaries
One and a half years after Lai Mohammed hinted that the government had given a marching order to relevant stakeholders to come up with a document that would regulate social media in the country, Vanguard Law and Human Rights reports that the National Information Technology Development Agency, NITDA, on June 13, 2022, released an 11-page document which it called a draft Code of Practice for Interactive Computer Service Platforms/Internet Intermediaries.
The comprehensive document exhaustively addressed issues relating to operations of Interactive Computer Service platforms/Internet Intermediaries under six major sections while the preliminary pages to the document gave a preamble to the code of practice, objectives of the code of practice, its scope and application and definition of operational terms used in the draft document.
Specifically, NITDA in the preliminary pages said the objectives of the Code of Practice included the need to set out best practices required of Interactive Computer Service Platform/Internet Intermediaries; to set out best practices that will make the digital ecosystem safer for Nigerians and non-Nigerians in Nigeria; set out measures to combat online harms such as disinformation and misinformation and adopt a co-regulatory approach towards implementation and compliance.
For the purpose of understanding the content of the document, NITDA explained that Interactive Computer Service Platforms refers to any electronic medium or site where services are provided by means of a computer resource and on-demand and where users create, upload, share, disseminate, modify or access information, including websites that provide reviews, gaming platforms, online sites for conducting commercial transactions while Internet Intermediaries include but not limited to social media operators, websites, blogs, media sharing websites, online discussion forums, streaming platforms and other similar oriented intermediaries where services are either enabled or provided and transactions are conducted and where users can create, read, engage, upload, share, modify or access information.
Under sections one and two of the document, NITDA listed various responsibilities of Interactive Computer Service platform/Internet Intermediaries section including that they must act expeditiously upon receiving a notice from a user or an authorised government agency of the presence of an unlawful content on their platforms; remove, disable, or block access to non-consensual content that exposes a person’s private areas, etc and disclose the identity of the creator of information on its platform when directed to do so by a court order.
Section three of the NITDA draft Code mandates all platforms whose users are more than 100,000 (large service platforms) to be incorporated in Nigeria with the CAC with a physical contact address and appoint a liaison officer who shall serve as communication channel between the government and the platform, among others; while section four prohibits a platform from keeping materials found objectionable on the grounds of public interest, morality, order, security, peace or otherwise prohibited by Nigerian laws.
Section five of the document discusses measures on disinformation and misinformation including providing users with easily accessible tools to report disinformation and or misinformation; trace, expose, penalise and close accounts and sources that amplify disinformation and misinformation while section six focussed on miscellaneous issues including that the Code may be reviewed from time to time by NITDA; noncompliance with the regulation shall be construed as a breach of the provisions of the NITDA Act of 2007 while any platform and or Internet intermediary that is responsible for the violation of the regulation may be liable to disciplinary measures under civil service rules, prosecution and conviction for violation of NITDA Act 2007.
FG not sincere, a ploy to regulate social media through the backdoor —MRA
But in less than 48 hours after NITDA released the draft Code of Practice, stakeholders including Chief Mike Ozekhome, SAN, a human rights czar and former Chairman of National Human Rights Commission, Prof. Chidi Odinkalu and a non-governmental organisation, Media Rights Agenda, MRA, kicked.
In a chat with Vanguard Law and Human Rights, Chief Ozekhome, SAN, said it is not in doubt that many Nigerians are now abusing the social media space with people using the cyberspace to invade people’s homes, privacy and write all sorts of rubbish against others but he quickly added: “I still believe that the remedy lies in the affected people taking legal action against violators of laws that are already there. For example, we have cybercrimes law which is very strong. You also have criminal libel law, criminal defamation law, etc.
“The issue I have with the government now is trying to use administrative means (Code of Practice) to achieve what was earlier rejected by Nigerians; what the government tried to regulate by an Act of National Assembly. It is not appropriate at all.
“We must know that the Nigerian Broadcasting Commission, NBC, had tried to use its Code of Conduct many a times to muzzle the freedom of speech of broadcasting organisations to disseminate information.
“I can tell you that no less than six times had the NBC either closed down Daar Communication outright or attempted to close it down through threat letters. And many at times, I had had to go to court to get orders after they were closed down because the outlet allegedly breached NBC’s code of conduct. One would have thought that if the TV/ Radio station does something wrong, they should take it to court.
“There are laws that govern freedom of speech. In any event, freedom of speech is not open ended. It is regulated by the same constitution, section 45 to be specific, which says that freedom of speech among other rights can be curtailed in the interest of defence, public safety, public order, public morality or public health.
“We have many legislations in the country. And the more legislations we have, the more the country goes down the drain. Our problem is not the absence of the law but the lack of the will to enforce these laws. The government should not be allowed to use the so-called code of practice to regulate our freedom of speech,” he warned.
Taking it up from where Ozekhome stopped, Prof. Odinkalu said: “There are legitimate questions on whether regulation of social media and online platforms should be done by subsidiary instrument or primary legislation.
“A Code of Practice is probably neither of these. It is supposed to be largely hortatory. The problem with this Code of Practice is that it actually does seem to propose consequences and to corner the digital landscape in the direction of prior constraint.
“That faces a challenge as to whether it meets the constitutional standard for such constraint in section 45 of the 1999 Constitution, which requires primary legislation for such matters.
“There is also the issue of scope. The entire scheme is anchored on the notion of “harmful content” which is defined as “content which is not unlawful but harmful.” This is meaningless. It does not address the question of the standard with reference to which you determine harm, by whom such determination is made or to whom exposure to harm matters. In effect, the standard is subjective and liable to egregious abuse,” he rang off.
A non-governmental organisation, MRA, said it is in total agreement with Odinkalu and Ozekhome.
But it also went further by arguing that the Federal Government’s latest effort is nothing but a ploy to regulate social media and other online platforms through the backdoor by circumventing the legislative process.
The organisation said the draft Code of Practice is a clumsy attempt to usurp the powers, functions and authority of the National Assembly as well as a breach of the constitutional rights of Nigerians.
According to MRA’s Programme Director, Mr. Ayode Longe: “The Federal Government is clearly attempting to circumvent the legislative process in favour of a backdoor approach to regulate social media and other internet platforms.
“It is curious that the Government has chosen to use an administrative document to surreptitiously create criminal offences as the document states unequivocally that any platform or internet intermediary responsible for violating its provisions will be liable to prosecution and conviction.”
He argued that NITDA’s misuse of the term “Code of Practice” to describe the document amounts to acting under false pretences to dupe Nigerians into believing that the Government is seeking to protect them when its real intention is obviously to control social media and other Internet platforms by compelling them to register with the Government and thereby muzzle the right to freedom of expression online.
Mr. Longe contended that the document is a breach of Articles 19 of the Universal Declaration of Human Rights, UDHR and Nigeria’s treaty obligations under the International Covenant on Civil and Political Rights, ICCPR, which gives everyone the right to freedom of expression, including the “freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers.
“The name is problematic. Although it is termed a code of practice, it is in fact not intended to provide guidance for the implementation of any specific law or regulation. Rather, it creates criminal offences which are not contained in any existing law and attempts to legitimize them by a vague reference to its enabling Act and other laws, which is beyond the remit of any such administrative document.”
Longe argued that the underlying rationale for many of the provisions of the document are unrealistic and unreasonable as they defy logic and common sense.
He said: “In today’s globalised world, is it possible or realistic to expect global Internet platforms like Facebook, Twitter and others to register with the government of every country in the world where they have users and set up offices in all those countries, which is the implication of the Federal Government’s demand? Conversely, Nigeria’s external broadcaster, the Voice of Nigeria, broadcasts its signal and content to dozens of countries around the world and runs a website that is accessible globally; is it registered and does it have offices in all the countries where its signals are received as Nigeria is now demanding of platforms registered in other countries?”
Mr. Longe described many of the provisions of the document as arbitrary and draconian, saying the requirement that platforms take down “unlawful content” within 24 hours after receiving a notice or complaint from any authorised government agency constitutes an attempt by the Government to control content published on social media and other online platforms while bypassing the judicial process and usurping the functions of the courts which should legitimately determine what content that is illegal or unlawful.
MRA therefore rejected the “Code of Practice” in its totality. It called on the government to abandon it and approach the National Assembly with an appropriate bill, if its genuine intention is to address legitimate issues rather than violating the rights of Nigerians and other members of the public on the pretext of protecting them from fake news and misinformation.
Although the government through its Information Minister, Alhaji Lai Mohammed had indicated that nothing would stop it from regulating the social media, the on-going criticism of the use of administrative document to regulate social media, hiding under section 45 of the 1999 Constitution, has raised a fresh concern as to whether the section 45(1) (a) actually contemplates a mere code of practice or primary legislation to address the issue at hand. Time will tell on the proper direction the code of practice will go.