Author: Tomiwa Ilori
HRDA Alumni Coordinator/Researcher: Democracy, Transparency and Digital Rights Unit, Centre for Human Rights, University of Pretoria
The curbing of information disorder online has become one of the most contentious areas in platform regulation. Not only do states struggle with the best approach to fulfill their responsibility to safeguard human rights, non-state actors, especially social media platforms are stepping in with self-imposed rules that may reflect scale but struggle with context on regulating free speech. The most prevalent challenge facing social media regulation, especially outside the United States whose free speech regime is regarded as liberal, is the varying degrees of the protection of free speech in other jurisdictions. Social media platforms also face the challenge of protecting free speech on one hand and catering to national contexts on the other. These variations are often due to the different socio-political local context of each country.
There are several models that are used for platform regulation. One of the common forms of regulations is the self-regulation model adopted by many social media companies. These are often enforced primarily through Terms of Services (TORs) and practically implemented through community guidelines. Many social media companies defend their actions on removal or restriction of content by referring to these ‘internal rules’ which the user agreed to when signing up on the platform. Another form of regulation is the co-regulation or joint regulation model in which states work directly with social media companies to mitigate adverse effects of online harms. The most common model is the traditional model which involves the use of laws to define the scope, powers and duties with respect to content regulation. The distinguishing factor of this model from others is the use of the state’s monopoly to make laws without being bound by external or internal influences. Many states prefer this model including Nigeria, which has recently seen the introduction of a new Bill in parliament seeking to regulate online freedom of expression.
The Protection from Internet Falsehoods, Manipulation and Other Related Matters Bill
The Protection from Internet Falsehoods, Manipulation and Other Related Matters Bill of 2019 (the Bill) was introduced in the National Assembly in October 2019 and has since been read for the second time on the floor of the Senate by November 2019. The aim of the draft bill under Part 1 is to, among others, prevent the transmission of false statements, suppress the promotion of online location that repeatedly share false statements, safeguard against coordinated inauthentic behavior, provide for measures on paid political adverts and to sanction offenders.
In Part 2 of the Bill, section 3(1)(a) criminalises the transmission of a statement knowing or having reason to believe it is a false statement of fact. This provision applies to persons in and outside Nigeria who share statements that they know or believe to be a false statement of fact. Section 3(1)(b) further criminalises transmission statements likely to be prejudicial to the security of Nigeria; prejudicial to public safety; prejudicial to friendly relations of Nigeria with other countries; incite feeling of enmity, hatred directed to a person; influence the outcome of an election to any office in a general election or referendum; diminish public confidence in the performance of any duty or function of, or in the any exercise of any power of the Nigerian government. Punishment for contravening these provisions is a fine of up to N300,000 (US$830) or a term of imprisonment of up to three years or both or in any other case a fine not exceeding N10,000,000 (US$27,620). The same punishment also applies to an inauthentic account or bot that commits the offences in subsection (1)(b). Section 3(4) provides the insulation of intermediaries from liability in the course of such transmission.
The draft bill also criminalises the making or altering of bots to spread false statements of fact. If found guilty, the person responsible for making the bot will be liable to a fine of up to N200,000 (US$500) or an imprisonment term of up to three years or both or in any other case not being more than a fine of up to N5,000,000 (US$13810). If the bots have such effect listed in section 3(1)(b)(i)-(iv) above, the person responsible for making the bot shall be liable for a fine of up to N300,000 or an imprisonment term of up to three years or both.
Section 5 of the draft bill also criminalises the receipt or agreement to receive financial or material benefits for the purpose of providing a service knowing that the service is or will be used in spreading false statements of fact in Nigeria by anyone in and outside the country. The offence is punished by a fine not exceeding N150,000 or an imprisonment term of up to two years or both or in any other case the fine not being more than N500,000 (US$1380). If these activities also have such effect listed in section 3(1)(b)(i)-(iv), such actions are punishable with a fine of up to N300,000 (US$830) or an imprisonment term of up to three years or both or in any other case may be a fine not exceeding N10,000,000 (US$27,620).
Part 3 of the draft bill provides for measures to be taken by a law enforcement department to regulate the transmission of false statement of facts in Nigeria. Such measures under section 6(1) include issuance of a ‘Part 3 Regulation’ by any law enforcement department on any false statement that has been transmitted or being transmitted in Nigeria or such department is of the opinion that it is in the public interest to issue such regulation. Section 6(2) also mandates the law enforcement department to issue such regulation even if such declaration of false statement has been amended or ceased to be transmitted in Nigeria.
Section 7 of the draft bill empowers the law enforcement department to issue a Correction Regulation to a person who transmits a false declaration, requiring the person transmitting the false declaration to state that the declaration is false or disclose the source of such false declaration or both. The provision absolves internet intermediaries of any liability in the transmission of such declaration.
Under section 8, a person may be issued a Stop Transmission Regulation to deter such person from transmitting a false declaration in Nigeria. This regulation may also include a correction regulation directing the person to publish a correction notice in a specified newspaper or other print publication in Nigeria. Under section 9 of the draft bill a person may be directed to through a regulation to perform an act in compliance with the regulation even outside Nigeria and bear the cost of such compliance. Non-compliance with part 3 of the draft bill is punishable by a fine of up to N200,000 (US$500) or a term of imprisonment term of up to twelve months or both or in any other a fine of up to N5,000,000 (US$13810). Section 11(1)(2) provides that no duty under any law or application to the High Court to vary or cancel the part 3 regulation shall be a defence to the charges under the bill. Section 11(2) absolves law officers of any liability for any action or inaction in the course of ensuring compliance with part 3 of the draft bill.
Where any person fails to comply with part 3 of the draft bill, the law enforcement department may direct the Nigerian Communications Commission (NCC) to order a service provider (ISP) to disable access by end-users to the online location where such declaration is sourced from and NCC must obey such direction. A service provider that refuses such order shall be liable upon conviction for a fine of up to N10,000,000 (US$27,620) for each day the order is not fully complied with. Before any appeal to the High Court is made with respect to Part 3 regulations, such appeal must first be made to the law enforcement department. A part 3 regulation remains in effect in the course of the appeal and will only cease to have effect when set aside by the High Court or the law enforcement department. Stay of proceedings in the appeal may only affect the regulation if it is abundantly clear that such regulation cannot be complied with. Also, issuance of a part 3 regulation does not affect the power of state to initiate proceedings for prosecution of an offence under the draft bill.
Part 4 of the draft bill deals extensively with regulations of internet intermediaries and providers of mass media services. Under this part, the law enforcement department may issue a part 4 regulation where a content containing false declaration has been or is being transmitted in Nigeria with instances similar to that of part 3 regulations. The draft law provides for the kind of regulations that may be issued to online intermediaries in Nigeria to include Targeted Correction Regulation (section 17); Disabling Regulation (section 18) and General Correction Regulation (section 19).
Under section 17, a regulation is targeted correction when it is issued to an intermediary service which includes social media platforms, requiring them to state that a certain declaration is false and or publish a specified declaration of facts or the online location where such declaration can be found. A Disabling Regulation under section 18 empowers the law enforcement department to issue a regulation to an internet intermediary to disable access of end-users to a false content. Section 19 provides for General Correction Regulation which may be issued to both a prescribed internet intermediary or a person to transmit a correction notice.
Part 4 regulation may be issued to a person whether they reside in Nigeria or not. The provisions of compliance and redress under part 4 regulation is similar to that of part 3 regulation above. The same Access Locking Order under part 3 regulation is applicable to part 4 regulation.
Under Part 5 of the draft bill, as provided for under section 27, the law enforcement department may declare an online location as peddling false declarations if three or more false content violates either part 3 or 4 of the regulations above in Nigeria or at least three of such false content have been transmitted within six months before the declaration by the law enforcement department is made. All the compliance requirements under parts 3 and 4 regulations are also applicable to situations where an online location is declared to be peddling false content including seeking redress and Access Locking Orders.
Section 32 provides that an internet intermediary including a digital advertising intermediary must take measures to ensure that a declared location is not transmitted in Nigeria. Failure to take such measures is punishable by fine of up to N200,000 (US$500) or an imprisonment term of up to twelve months or both or in any other case a fine of up to N5,000,000 (US$13810).
Assessing the constitutionality of the law
Nigeria’s constitution sets the standards for the protection of fundamental rights. These standards usually emanate from international human rights treaties which Nigeria is party to. Specifically, article 19(1) and (2) of the International Covenant on Civil and Political Rights (ICCPR) provides for the right to freedom of expression. Article 19(3) of the ICCPR also provides for instances where the right may be justifiably limited. Such restriction must be pass the test of legality where such law limiting the freedom of expression must be ‘formulated with sufficient precision to enable an individual regulate his or her actions accordingly’; must pursue a legitimate aim, which includes the need to protect the rights of others, public morals and public order (ordre public); and such limitation must be necessary in a democratic society in that the state must demonstrate that there is a pressing social need, relevant and sufficient and use the least intrusive instrument to achieve its aim. This last requirement also states that such restriction must be a specific and individualise limitation of the right while establishing a connection between the expression and threat. Most importantly, these requirements must be cumulatively fulfilled.
Section 39 of the 1999 Constitution of Nigeria (as amended) provides for the right to freedom of expression. Any law limiting the right under section 39(3)(a) and (b) of the Nigerian Constitution must be reasonably justifiably in a democratic society. Indirect limitations of fundamental rights under section 45 of the Constitution are in line with the international standards for limitation of free speech.
Criminalisation of false news has been repeatedly criticised by international human rights monitoring bodies as undemocratic as it has a chilling effect on the right to freedom of expression. In the 2017 Joint Declaration on Freedom of Expression and ‘Fake News’, Disinformation and Propaganda, the United Nations’ Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression together with the Organization for Security and Co-operation in Europe (OSCE) Representative on Freedom of the Media and other inter-governmental experts, concluded that ‘general prohibitions on the dissemination of information based on vague and ambiguous ideas, including ‘false news’ or ‘non-objective information’’ are incompatible with human rights law and should be abolished. They also stressed that the “human right to impart information and ideas is not limited to ‘correct statements, and ‘protects information and ideas that may shock, offend, and disturb.’
The UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression has highlighted in a paper that measures taken by the states to curb information disorder often contain ambiguous definitions of what constitutes ‘false’ ‘unfounded’ or ‘biased’, which does not adequately describe the content that is prohibited. A close look at the draft bill shows that not only were some of these vague words used, their scope of application is also overboard to include persons living outside of Nigeria. This clearly does not comply with the standards that a law in limiting the right to freedom of expression must be formulated with sufficient precision.
For example, section 3(1)(a) (iv) and (vi) which provides that false statements include those that could influence the outcome of an election and referendum and diminish public confidence in the Nigerian government will not only stifle the right to political participation and valid criticisms of the government but also censor expression of dissenting and unpopular content which are crucial to the survival of a democratic society. Importantly, while social media platforms may not have significantly improved elections in Nigeria, they have made them more open by showcasing in real-time the factors that may affect the integrity of the elections.
Again, the regulations provided for under the bill gives extensive discretion to law enforcement departments, which paves way for arbitrariness. Asides this, the bill purports to oust the constitutionally guaranteed powers of the court to hear infringement of fundamental human rights matters under section 45 of the Nigeria Constitution. All the forms of regulations proposed are not only in gross violation of the 1999 Constitution of Nigeria, they are contrary to obligations Nigeria has committed to under international law.
Additionally, part 5 of the bill poses a huge threat to online freedoms as internet intermediaries, including social media companies are put under pressure to comply with regulations that clearly violate the enjoyment of free speech. Even though social media companies do have the duty to protect human rights under international law, the use of laws like the present bill will further reduce the ability of these companies to fulfill their obligations under the law which primarily includes a careful balance of protecting free speech and keeping platforms safe from harms.
The Economic Community of West African States (ECOWAS) Court of Justice has also ruled that speech that may appear false need not be criminalised considering that the interest of protecting the right to freedom of expression clearly outweighs the untested importance of censorship. This decision is in conformity with the reasonably justifiable test set by the Nigerian Constitution under section 39(3) that any law seeking to limit the right to freedom of expression in Nigeria must pass. This bill does not pass the test.
Walking through a desirable response to information disorder in Nigeria
While the bill reads like the resurrected version of the dead Frivolous Petitions Bill of 2015, this version, like the old one, is not capable of being implemented in Nigeria. This is noting that not only does the Law Enforcement Departments vested with extensive discretion under the law lack the adequate training to carry out its enforcement, the scope of the bill is not necessary nor reasonably justifiable in a democratic society.
One of the proven ways of combating online falsehoods is by promoting counter-speech. Counter-speech does not only allow democratic values to thrive, it is in the exchange of competing ideas that the true facts surfaces. In order to cater to the government’s concern of the effect of these falsehoods on public order, the teaching of history should be reintroduced into the curriculum of schools in order to help drive proper and factual contexts to allow for more opportunities for debates. Together with this, government must work with social media platforms, using the co-regulation approach to teach students at these levels and the general public the several ways of detecting false information online. This already works in countries like Italy and Finland. This presents opportunities to teach tolerance for unpopular speech and at the same time detect false information by countering with facts.
Just like the current scourge of problematic cyber-crimes legislations across Africa, the bill is capable of having a bush fire effect in other African countries should it become law in Nigeria. The advocacy on its dangers must start now when the bill is currently being considered by the legislature by taking advantage of all legal avenues including in and outside the legislature to protest against the bill.
Social media companies cannot afford to limit the scope of their respect for free speech to just the First Amendment in the United States. Not only does this adversely affect the duty to respect human rights in jurisdictions outside the US, it also poses great danger to the local contexts across countries. For example, the recently released Twitter policy on political ads states that they will prohibit any content relating to campaigns, elections, candidates, parties or overtly political content. While this is a shotgun approach to the issues of political ad, and a mild victory against micro targeting ads, the part of the policy that prohibits the mentioning of a specific legislation in an ad will have adverse effects on the political ecosystem of many countries outside the US. For instance, an ad made to campaign against the problematic provisions of this bill on Twitter, would be banned in accordance with the new policy. There is also the public’s right to access information especially during elections. Twitter has not in any way demonstrated that it protected that right with its new ad policy.
Another way in which the proposed law is problematic is the manner in which it absolves internet intermediaries from responsibilities. Intermediary liability across the globe, especially as it relates to the US-EU position is fast changing. There is more push towards intermediaries taking more responsibility rather than standing by as an impartial arbiter which in the true sense of platforms, they are not. Social media companies must lean more towards accountability and responsibility by not only self-imposing rules but by being proactively transparent in how content moderation is carried out on their respective platforms.
In combating online disinformation, the government of Nigeria cannot afford to use the traditional model of platform regulation which is seen in the Online Manipulations bill which seemed to have been lifted from the Singaporean law on online manipulation. It needs to work with a more practical approach which must take into account concerns of all stakeholders. This model involves key stakeholders with diverse perspectives coming together to lend a consensus-based, open and stakeholder-driven decisions on combating disinformation online. While it may cost more in time and resources, it proffers a longer-lasting solution to curbing online disinformation compared to the knee-jerk approach of the one-way system of the traditional model.
A possible result of a multi-stakeholder approach is the establishment of an independent oversight body in Nigeria with equal representation from government, social media companies, civil society, the academia and relevant stakeholders. This body will demonstrate a more diverse set of views steeped in a body of rules that are human rights-complaint to entertain cases that would otherwise be limited by the unfettered discretion of Law Enforcement Departments. It also gives an opportunity to correct the anomalies that will be created by this bill, by providing means of redress within the fringes of the law among other issues.
One of the biggest challenges of content regulation and protecting against online harms in the digital age is the problem of catering to local context. This has emboldened governments to step in with problematic laws that grossly violate human rights in the digital age. Many social media companies are also torn in between scaling global values and standards and catering to local contexts. While there is no guaranteed way to resolve this, the use of bad laws by states to curtail free speech is obviously not the way to go. While social media companies must understand that scaling values is not mutually exclusive with understanding local context, states must also lean towards a deliberative democratic model that assists with long-term solutions on online harms. Social media must also as a first step begin to set international human rights standards as the basis for their content regulation policies.
At the centre of this conversation, is the need to secure the voices of the people. Now that what gets amplified must get online, and what gets online now shapes public policy, everyone, including businesses, governments and the average person need to determine the future of free speech along the lines of preserving our collective existence and humanity. The Protection from Internet Falsehoods and Manipulation and Other Related Matters Bill 2019 does not merely pose some problems to this future, it is the problem. Its use of legal language to shrink protection of free speech especially in the digital age calls for a huge concern and an immediate response. Stakeholders must work together to ensure that the law is scrapped and a new initiative, driven by diverse representations is introduced through an independent and impartial body to determine the scope the limitation of the right to freedom of expression online and in general, secure Nigeria’s budding democracy.
About the Author:
Tomiwa Ilori is an LLD Candidate and Researcher at the Democracy, Transparency and Digital Rights Unit of the Centre for Human Rights, University of Pretoria where he is also the Coordinator of the Centre’s LLM/MPhil in Human Rights and Democratisation in Africa (HRDA) alumni network.