Nov 4, 2020

#EndSARs: Can Live Video Evidence Be Relied Upon? | Freda Odigie



On the 20th day of October 2020, what started as a peaceful protest for over two weeks turned bloody after the Nigerian Army allegedly unleashed it’s bullets at unarmed protesters leading to loss of lives and many injured. The protest tagged #ENDSARS was carried out across many cities in Nigeria and other countries.

Fortunately, a number of protesters recorded the situation where the world could hear and see the atrocities allegedly committed by the Nigerian Army. Some broadcasting stations covered the situation and showed footages of this tragic event taken at the protest ground.  

The Nigerian Broadcasting Commission (NBC) on Monday the 26th of October 2020, six days after the tragic shooting at Lekki Toll gate, fined three broadcasting stations, Arise TV, African Independent Television (AIT) and Channels TV with 3 Million Naira each. The reason given was that these stations covered the shootings by posting unverified footages. However the fine received some strong oppositions one of which is the Socio-Economic Rights and Accountability Project (SERAP) who issued NBC 48 hours ultimatum to withdraw the fine or risk legal actions. SERAP argued that the fine was an attempt to silence the media and restrict freedom of speech and the press. Also, some Nigerian Lawyers under the aegis of Digital Rights Lawyers Initiative (DRLI) filed a lawsuit against NBC over the fines.

While it is true that a number of fake and old videos were circulating the internet after the shooting occurred, some videos raises no iota of doubt, one of which is the live video shared by DJ Switch on Insta Live. From the video, we could see and hear gunshots, people running, bullets, soldiers shooting at protesters. Despite videos corroborating the location and presence of some Nigerian soldiers at the scene of the shooting, the Defence Headquarters claimed the videos shared are fake. As a result, people have questioned the authenticity of these videos, others have argued that live videos from social media platforms like Facebook and Instagram cannot be Photoshopped while it is being recorded.

These questions raises quite a number of issues for determination in this scenario.

CAN LIVE VIDEOS BE PHOTOSHOPPED?

Several live coverage on the shootings were circulated all over social media from the phones of protesters who were present at Lekki toll gate. Most notably the Lekki shootings where members of the Nigerian Army were allegedly shooting at protesters. From some of the videos, we could see that the lights illuminating the Lekki toll gate went off almost immediately the shootings started.

From the video, we could see that it was a live coverage on Instagram. However there are contradictory stories coming from both the witnesses who were at the shooting scene, the Lagos State government and the Nigerian Army, the question lingering is whether that video is authentic or photoshopped. Where the Army initially denied being at the scene.

Without the need for long rigmarole, the simple answer is that a live video from social media cannot be photoshopped or edited while it is recording because it is LIVE!!!!   While it is possible for unverified and old videos to circulate during an unrest, it is impossible for a live video on any social media platforms to be photoshopped.

 

CAN LIVE VIDEOS BE ADMISSIBLE IN EVIDENCE?

The admissibility of electronically generated evidence is governed by Section 84 of the Evidence Act. The section states as follows:

(1)  In any proceeding, a statement contained in a document produced by a computer shall be admissible as evidence of any facts stated in it of which direct oral evidence would be admissible, if it is shown that the conditions in subsection (2) of this section are satisfied in relation to the statement and computer in question.

 

(2)  The conditions referred to in subsection (1) of this section are-

a.    That the document containing the statement was produced by the computer during a period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period, whether for profit or not, by anybody, whether corporate or not, or by an individual;

b.    That over that period there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained in the statement or of the kind from which the information so contained is derived

c.    That throughout the material part of that period the computer was operating properly or, if not, that in any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of its contents; and

d.    That the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of those activities.

 

Telephones are a form of computer and social media cannot operate without the use of computers. We have seen court proceedings, crimes committed, confessions of crime committed, sealing of contracts, defamatory statement, receipts of payment made and even corroboration of a crime happening live on social media platforms.  Therefore evidence generated from social media are admissible as they fall under Section 84 of the Evidence Act. As long as the device containing those content fulfills the requirements of Subsection 2 of Section 84.

 

IS SANCTIONING A MEDIA OUTLET WHO POST LIVE VIDEOS OF AN EVENT IN BREACH OF FREEDOM OF THE PRESS

Among the fundamental rights a person is entitled to is the right to Freedom of Expression and the Press. Section 39 of the 1999 Constitution provides for the right of expression and freedom of the press. Generally, an attempt to silence or restrict the press is a breach of the constitution.

In addition with the provisions of the constitution, Section 1.2 of the NBC Code on Coverage of Crisis, Disorder and Emergency, Sections 1.2.6 and 1.2.7 precisely, broadcasting stations are admonished to verify their news before posting.

With the threat of legal action, the question is will SERAP succeed if they bring an action as the NBC is the body in charge of broadcasting stations in the country. The NBC Code in Section 1.2.6 states that “Broadcasters using social media sources or any emerging technologies for coverage of disasters and emergencies shall ensue the veracity and credibility of the originating material and content”.

Section 1.2.7 states thus “Broadcasters in using social media sources or any emerging technologies shall ensure due caution and professionalism in the coverage of disasters and emergencies”.

Also the NBC cannot rely on any other law or code to justify this sanction as Section 1 (3) the 1999 Constitution states that “If any other law is inconsistent with the provision of this Constitution, this Constitution shall prevail and that other law shall to the extent of the inconsistency be void”.

What NBC would have done is to investigate the authenticity of the news before imposing fine. The actions of NBC does not seem sincere as this administration have been repeatedly accused of attempting to silence the press. If they cannot prove that this news are unverified then the fine imposed on these stations are illegal and uncalled for. The media is an essential part of the potency of democracy therefore an attempt to silence the media is an attempt to disrupt democracy. The only way the fine will be tenable is if there is evidence that the videos published by these stations are fake.

CONCLUSION

The action of NBC reminds people of the proposed plan to curtail hate speech by censoring social media which have received serious backlash from citizens. With the distrust citizens have for the government, actions taken like that of NBC will only create more doubt and distrust of the government. The Digital Forensic Research Lab noted that the videos showing the shooting are authentic. The fine itself lost its credibility when the Nigerian Army admitted that they were sent by the Lagos State government to contain the unrest.

For a satisfying fact check, the NBC is expected to investigate the authenticity of whatever videos shared by these broadcasting stations before imposing any form of fine on them.

 

Article by Freda Odigie.

Legal Practitioner at E.A Otokhina & Co


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