Dec 13, 2019

The Social Media Bill: The Government’s Attempt At Monopolizing Truth | Michael Orekoya



 

 INTRODUCTION

According to a recent BBC report, false information and incendiary images on Facebook have contributed to more than a dozen killings in Plateau state.[1] In 2018 there was a false alarm, on Facebook, of an impending massacre of the Christian Berom people of Plateau state by Fulani Muslims.  Grim images of murdered children and corpses buried in mass graves were circulated online.



 It then goes without saying that there is an urgent need to combat the menace of falsehood online. It must be noted that the raging menace of falsehood online is not peculiar to Nigeria as various jurisdictions around the globe have taken deliberate legislative and non-legislative steps in addressing it.[2] In 2016 the Nigerian legislature proposed the “Frivolous Petitions (Prohibition) Bill” also called the Anti-Social Media Bill by those who criticized it. Section 3(4) of the bill sought to regulate social media by criminalizing “abusive statements” online known to be false by the author. This bill was however vehemently rejected by majority of Nigerians and was subsequently withdrawn by the Senate following the recommendations of the Committee on Judiciary, Human Rights and Legal Matters which stated inter alia that the passage of “the bill will do more harm than good”.

 Recently Senator Muhammed Sani Musa of the Niger State East Senatorial District sponsored the “Protection from Internet Falsehoods and Manipulations and Other Related Matters Bill 2019”. On the 20th of November the bill reached second reading in the Senate. Like the frivolous Petition Bill, this bill has stirred up controversy and questions regarding its validity have been asked in several quarters. This article intends to discuss the constitutional validity of the bill, examine specific provisions in the bill and their implications, and proffer recommendations upon engaging in a comparative study.







THE RIGHT TO FREEDOM OF EXPRESION

Section 39(1) of the 1999 constitution states 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. Subsection (2) provides that every person shall be entitled to own, establish and operate any medium (including social media) for the dissemination of information, ideas, and opinions. Freedom of expression is, however, not an absolute right as they carry duties and responsibilities, meaning government can restrict it. Article 19(3) of the ICCPR provides that every lawful restriction on the freedom of expression must comply with the following:

1.      The restriction must be provided by law

2.      The restriction may be based on :

i.                    Public order, morality or health

ii.                  Respect for  the right and reputation of others

3.      The restriction must be proportionate and necessary. 


Section 45(1) of the 1999 constitution contains similar provisions. According to the Oakes test[3] developed by the Supreme Court of Canada, proportionality involves comparing the importance of the right and the likely effect of the restriction on the exercise of that right with the importance of the goal or the legitimate aim which is sought to be protected. Also the Supreme Court of India in Ranagarajan v. P.J Ram[4] held that there must be a very close link between an expression and a threat of a disturbance for a law restricting such expression to be deemed necessary.

 Hence for restriction on freedom of expression on the basis of public order or safety to be considered necessary:

i.                    There must be a pressing need as minor threats to protected interests do not pass the threshold test for restricting freedom of expression.

ii.                  The government should adopt measures that are least intrusive and are most conducive to freedom of expression.

iii.                Legitimate expressions should not be hampered by the restriction as harmful expressions should be the focus.

iv.                The limitation should be proportionate. This means a limitation should not cause more harm than good.

In R v Zundel[5] the defendant was convicted for spreading false news contrary to Section 181 of the Canadian Criminal Code which stated: “Everyone who willfully publishes a statement, tale or news that he knows is false and that causes or is likely to cause injury or mischief to a public interest is guilty of an indictable offence…” Upon appeal, the Canadian Supreme Court held that Section 181 of the Criminal Code violated Section 2(b) of the Canadian Charter of Rights which guaranteed freedom of expression as even lies and false statements are protected forms of expression. In this case, the Canadian court examined the legislative objective of the Code and determined that there was no pressing and substantial objective attached to it. It was further held that Section 181 suffered from vagueness and was overly broad hence it could affect a broad range of expression and speech.





SPECIFIC PROVISONS OF THE BILL

Clause 3 of the bill states that a person who does any act within or outside Nigeria in order to transmit in Nigeria a statement knowing or having reason to believe it is false and the transmission in Nigeria is likely to, among other things, be prejudicial to public health, public safety, public tranquility or public finances and diminish public confidence in the performance of any duty or function of, or in the exercise of any power of the government is liable upon conviction, in the case of an individual, to a fine not exceeding N300,00 or to imprisonment to a term not exceeding 3years or both, while in any other case, to a fine not exceeding 10 million.


 Going by this provision it is pertinent to note that there’s a great risk that the law will be misused to clamp down on opinions or information that are critical of the government as the General Interpretation Section of the Bill states that “a declaration is false if it is false or misleading, whether wholly or in part, and whether on its own or in the context in which it appears”. A lack of clear definition of what the bill regards as falsehood would not serve the ends of justice as the bill, if signed into law, will end up targeting a wide range of expressions. Just like Section 181 of the Canadian Criminal Code, this provision suffers from vagueness and is overly broad.


It must be noted at this point that the bill bears direct semblance with Singapore’s Protection from Online Falsehoods and Manipulation Act.[6]  Singapore is a ‘democratic’ country but it is ranked 151 out of 170 countries in the World Press Freedom Index, hence Singapore is a bad model when it comes to laws regulating falsehood online.[7] Among other things, the stated objective of the Bill is to prevent the transmission of false statements on the internet and to enable measures to be taken to counter the effect of such transmission.


The bill also grants the Law Enforcement Department (The Police) the power to direct the Nigerian Communications Commission (NCC) to order the internet access service provider to take reasonable steps to disable access by end users to a declared online location. Contrary to popular opinion, the Access Blocking Order does not grant the government the power to shut down the internet, it could however be used to prevent Nigerians from accessing online platforms that check the excesses of the government in the name of ‘falsehood’. Clause 18 of the bill also provides for a Disabling Regulation which can be issued to an internet intermediary like Facebook or Google to disable access by end-users in Nigeria to a particular publication that is deemed ‘false’. 


Clause 7 and 8 of the Bill respectively make provision for ‘Correction’ and ‘Stop Transmission’ Regulations. Under this regulation, the government can order a person to make a declaration, in such terms as may be specified by the government, that a transmitted material contains a false declaration of facts. In Singapore, where a similar law applies, a Facebook post by an opposition politician that questioned the governance of the state’s sovereign wealth funds and accused the government of mismanagement were considered by the Singapore government as “false”.[8] The Singapore officials ordered the accused to publish the government’s refutation at the top of their posts. The original post was then published with the word “FALSE” boldly stamped across its pages. In another development, Facebook announced that it had applied a label to a post “determined by the Singapore government to contain false information”, as required under the “fake news” law. This post by an Australian based blog which claimed the police had arrested a “whistleblower” who “exposed” a political candidate’s religious affiliations was issued a corrective label by Facebook.[9]


 Regarding appeals to the High Court, in Clause 13 (2), the bill stated that no appeal may be made to the high court by any person unless the person has first applied to the Law Enforcement Department (The Police) to vary or cancel the sanctions imposed. It has been argued that Clause 13(2) is necessary to prevent falsehood from spreading quickly. It must however be stated that this provision makes the Police the judge and the jury in its own matter. Furthermore, the red tape in the Nigerian Police might discourage individuals from appealing against a sanction hence defeating the ends of Justice.

The provisions of Clause 34 gives the government power to make regulations “necessary” or “convenient” in carrying out or giving effect to the act.  This blank cheque given to the government, particularly the police force in enforcing the provisions of the act is a source of worry to many, including the author, as it could serve as a leverage for violating the right to freedom of expression by a police force that is notorious for its ruthlessness in dealing with dissidents.





COMPARATIVE ANALYSIS:

CANADA: Canada currently does not have any specific law prohibiting the dissemination of falsehood online unless that information is defamatory and is covered by libel laws or within the sphere of broadcasting regulations.[10] Section 181 of the Canadian Criminal Code which prohibits the spreading of false news was declared unconstitutional by the Supreme Court of Canada. However the hate propaganda provisions in Section 318 and 319 of the Criminal Code can be used to deal with false news which promotes hatred. 


FRANCE: France has no specific regulation prohibiting the dissemination of fake news; it however has legislations against fake news in general. The 1881 Law on Freedom of the Press can be used by the government to stop the spread of fake news that could disrupt public peace. However France recently adopted a new law that requires large-scale online platform operators to adhere to certain standards during the three months preceding general elections.[11] The new law, among other things, provides that a judge may order any proportional and necessary measure to stop the dissemination of fake or misleading information online.


Kenya: In 2018 Kenya enacted the Computer Misuse and Cyber Crimes Act. This act criminalizes “false publications” and the “publication of false information”. However major provisions of the Act were suspended by the Constitutional and Human Rights Division of the Kenyan High Court.[12] The provisions remain suspended to date.  


The United Kingdom: The UK does not currently have any specific regulation on false news online. However several reports have been issued, recommending tech companies to remove content identified as harmful or they will be penalized. The UK has adopted a pre-emptive response strategy targeted at predictable events such as elections. There is a rapid response unit that is comprised of specialists including analyst-editors, data scientists, media and digital experts. The rapid response monitors news and information been shared online, assesses the scale of engagement to determine whether it is appropriate to respond to the content and creates appropriate content with the aim of balancing the narrative. The rapid response targets the content such that the “correct content” is visible to the public.



RECOMMENDATIONS:

From the comparative study it can be deduced that in the “free world” laws specifically regulating news on social media are considered unconstitutional and a violation of the right to freedom of expression. Also the difficulty in defining “false or fake news” raises the risk of an overbroad government legislation that might eventually clamp down on opposition or any form of criticism as it is with Singapore. Unfortunately there is no hard and fast or permanent fix to the menace of falsehood on the internet; nonetheless there is is a need to address this menace:


Internet users should be better educated so that they can easily distinguish credible sources from sources notorious for peddling news that are false. Internet users should be better enlightened on the actors and stakeholders and their affiliations in a given story. Critical news consumption skills that would help to identify and question unverified details should be incorporated into school curriculum or promoted through government sponsored programs. For example in 2018 the United States Embassy in Kenya started a media literacy campaign known as “YALI Checks: Stops.Reflects.Verify” to counter the spread of false information online in Kenya.[13] This campaign provides a mix of online activities, including an email series, an online quiz, blog posts, online chats, public outreach, educational videos, and an online pledge. This solution is long term and it requires the government’s commitment to yield results.



Counties like Japan, Canada, Sweden and the United Kingdom have refused to enact legislations that expressly address or regulate news on social media; rather they apply relevant provisions of existing laws regulating the media. These laws could however be amended to reflect current technological and telecommunications development. Despite being unconstitutional, the Cyber Crimes (Prohibition, Prevention etc.) Act 2015 already addresses falsehood online. Section 24 of the Act provides that; anyone who sends a message or other matter by means of computer knowing it to be false, for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, ill will or needless anxiety to another commits an offence. Section 2 of the act further states that; any person, who intentionally transmits 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 to another person commits an offence. Also Section 373, 375 and 376 of Nigeria’s Criminal Code as well as the Defamatory and Offensive Publications Act all criminalize defamation. Section 59(1) and (2) of the Criminal code are also used to try false publication offences.





The NCC recently created a technical framework for the use of social media Network in Nigeria.[14] This framework attempts to provide a baseline for social media governance, policy and guidelines to help the individual, businesses or the government. However, in addition to this, the NCC should create an accreditation system and a fact-checking portal for content creators and distributors. This accreditation system will inculcate and promote existing news gathering and reporting norms and best practices for online platforms. Independent accreditation institutions could be created as long as they do not undermine the right to the freedom of expression. The accreditation system should be designed and closely monitored in such a way that it will not be manipulated by the government in silencing online news platforms or promoting government-approved news.



CONCLUSION:

It is common sight to see countries rated low in the freedom of speech indices to enact legislations with broad definitions in an attempt to further restrict free speech and stifle opposition. In Canada and Kenya such laws have been deemed unconstitutional and have been suspended. The Protection from Internet falsehood and manipulation Bill 2019 which shares a direct similitude with Singapore’s oppressive Protection from Online Falsehoods and Manipulation Act has no place in Nigeria’s democracy as it specifically grants the government monopoly over the truth.











[1] BBC News, Fake news and Nigeria’s herder crisis, 29 June 2018,
 https://www.google.com/amp/s//www.bbc.com/news/amp/world-africa-44655148/
[2] BBVA, Fake news: the figures and solutions of a global phenomenon, 16 May 2018 https://www.bbva.com/en/fake-news-the-figures-and-solutions-of-global-phenomenon/

[3] R v Oakes, (1986) 1 SCR 103
[4] 1989 SCR (2) 204
[5] (1992) 2 S.C.R. 731
[6][6] The Cable, Fact Check: Is Nigeria’s ‘social media bill’ truly a replica of Singapore’s act? https://www.google.com/amp/s/www.thecable.ng/fact-check-is-nigerias-social-media-bill-truely-a-replica-of-singapores-act/amp

[7] Reporters Without Boarders, 2019 World Press Freedom Index
[8] Theguardian.com, Singapore invokes ‘fake news’ law for the first time over Facebook post https://www.google.com/amp.theguardian.com/world/2019/nov/25/singapore-fake-news-law-facebook-brad-bowyer
[9] Reuters, Facebook Issues Label on user’s post under new Singapore fake news law https://www.google.com/amp/s/mobile.reuters.com/article/amp/iduskbn1y4043

[10] CBC, MPs Look For Ways to Fight ‘Fake News’ in Wake of Mosque Shooting, Kathleen Harris, Feb. 2, 2017, https://www.cbc.ca/news/politics/canada-fake-news-google-facbook-twitter-1.3961992

[11] Organic Law No. 2018-1201 of 22 December 2018 Regarding the Fight Against Information Manipulation
[12] Bloggers Association of Kenya (Bake) v Attorney General & 5 others(2018)eKLR at 1,
[13] U.S. Embassy in Kenya, Ambassador Godec and U.S Embassy Counter Fake News with Media Literacy Campaign, March, https://ke.usembassy.gov/ambassador-godec-u-s-embassy-counter-fake-news-media-literacy-campaign/
[14] NCC, Technical Framework for the Use of Social Media Network in Nigeria version 1.0, June, 2019
https://www.ncc.gov.ng/documents/871-igov-technical-framework-social-media/file
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