WE SHOULD HAVE A TRUE SOCIAL MEDIA BILL

WE SHOULD HAVE A TRUE SOCIAL MEDIA BILL

BY

FUNMILAYO ODUDE

This piece is inspired by the continuous conversation surrounding the Frivolous Petition Bill sponsored by the Deputy Majority Leader of the 8th National Assembly, Senator Bala Ibn Na’Allah representing the Kebbi South Constituency. The Bill now popularly referred to as the Social Media Bill, as a result of a provision contained therein dealing with the use of social media, has understandably generated a lot of controversy. There is a report that the Registered Trustees of Online Publishers Association of Nigeria has filed a suit against the Senate at the Federal High Court Abuja seeking an order of perpetual injunction restraining the Senate from passing the bill into law.

I want to begin by adopting the words of the Senate President, Dr. Bukola Saraki when he stated that there is no bill known as the Social Media Bill currently before the National Assembly. The bill, which has generated this heated rejoinder, is to be cited as the Frivolous Petitions (Prohibition, etc.) Bill 2015. This distinction is important to establish the absurdity in and question the surreptitious nature in which the controversial section (it is actually a subsection) was inserted into the bill. The explanatory memorandum states that the bill is “to prohibit frivolous petitions intended to report the conduct of any person of an investigation, inquiry or inquest without a duly sworn affidavit”. One then wonders how Section 3(4) of the proposed bill fits into the overall purpose of the bill. The controversial portion of the bill states:

Where any person through text message, tweets, WhatsApp or through any social media post any abusive statement knowing same to be false with intent to set the public against any person and/or group of persons, an institution of Government or such other bodies established by law shall be guilty of an offence and upon conviction shall be liable to an imprisonment for 2 years or a fine of N2, 000,000.00 or both such fine and imprisonment.”

Before I delve into my opinion as to the constitutionality or otherwise of this provision, please allow me to first criticize the aim and purport of the Frivolous Petition Bill which no one else seems to be bothered about. The aim of the bill is to ensure that any petition or statement intended to instigate an investigation into any matter be accompanied with a duly sworn affidavit in the High Court of a State or the Federal High Court confirming the content of the petition to be true and correct and in accordance with the Oaths Act. It then goes further to provide that any petition submitted without the accompanying affidavit should not be acted upon by any government institution, body or agency. Publishing a petition not accompanied with a sworn affidavit or acting upon such a petition constitute offences under the Bill.

While it may seem that the mischief sought to be cured by this bill is the prevention of frivolous petitions, I wonder if the bill if passed into law would not have the more damaging effect of frightening citizens into silence when they ought to be seeking intervention for the infringement of their rights or just merely reporting cases in which they believe there have been infractions. This bill if passed into law will definitely succeed in eliminating the possibility of whistleblowing in the current administration. The scope of the bill is limitless as it covers all petitions written to every agency of government and for all sorts of issues including the relatively simple citizen-friendly ones. While there may be a need to indeed find a way to prevent frivolous petitions, making such general laws capable of instilling the fear of the repercussion of being charged for perjury for reporting infractions, on the populace does not augur well for our nation. As it stands, a major chunk of our populace are not aware that there are even government agencies designed to handle specific complaints and we generally have a citizenry that is wary and distrustful of the various agencies of governments. With the already large-scale ignorance and apathy on such issues exhibited by the country, making such onerous conditions to making a complaint to a government agency for investigation is bound to discourage valid complaints and cause Nigerians to overlook several infractions against them. I believe it is counterproductive and frankly ridiculous to ask a person to swear an oath confirming the veracity of his or her complaint or petition when he or she is seeking an investigation into the matter. Isn’t it the task of the investigative agency to determine if the allegations contained in the petition are indeed true and correct?

Do we need to prevent frivolous petitions so that the agencies can focus on genuine infractions? Yes but it should not be through such broad and lazy legislating; and frankly speaking, it is not a priority for us as a nation at this time. There are more pressing issues our National Assembly can look into.

THE CONSTITUTIONALITY OF CRIMINALIZING LIBEL

I now turn my attention to the troublesome subsection quoted above. The reaction of the social media community (somehow ‘cartel’ or the more locally accepted ‘cabal’ seem more apposite) in Nigeria has been that the National Assembly is attempting to gag the media, and many have stated that it is an infringement of their right to freedom of expression. I find this postulation quite misguided. Freedom of expression is indeed a recognized fundamental human right both nationally and internationally.

Section 39 (1) of the Constitution states:

Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.”

Article 19 of the Universal Declaration of Human Rights provides:

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.”

 

Article 9 of the African Charter on Human and Peoples Rights provides:

1. Every individual shall have the right to receive information.

2. Every individual shall have the right to express and disseminate his opinions within the law.”

 

But like all fundamental human rights, it is not absolute. There is no fundamental human right that is absolute, not even the most important one being the right to life. As Nigeria still practices the death penalty under our criminal justice system, which is the mandatory sentence for crimes such as murder, armed robbery, treason and treachery, life can be legally taken when a person is found to be guilty of these crimes. In my early days studying law, one of the most respected lecturers in my faculty, Dr. Mosunmola Imasogie stated: “Your right ends where mine begins.” In exercising our fundamental rights, we cannot infringe the right of others and law makers have a responsibility to ensure that rights are expressed and enjoyed by individuals in a manner that make for communal living. The Constitution recognizes this. Section 45 (1) of the Constitution provides:

Nothing in sections 37, 38, 39, 40 and 41 of the Constitution (these are the sections providing for the fundamental human rights) shall invalidate any law that is reasonably justifiable in a democratic society –

(a) in the interest of defence, public safety , public order, public morality or public health; or

(b) for the purpose of protecting the rights and freedom of other persons.”

So, my quick answer to the Online Publishers Association of Nigeria in respect of the suit they filed is that not only does the court lack the power to prevent the National Assembly from carrying out their constitutional duties (it would have been a different scenario had the law been passed and the section challenged for being unconstitutional), the law is not invalidated by the mere fact that it infringes a fundamental right if it can be shown that it is necessary in the interest of defence, public safety, public order, public morality or public health; or for the purpose of protecting the rights and freedom of other persons.

Is it? I believe it is. The troublesome provision in the bill penalizes “any abusive statement knowing same to be false with intent to set the public against any person and/or group of persons, an institution of Government or such other bodies established by law”

The question that usually pops into my mind when I read about the agitation over the provision is if people want to go about deliberately posting false information about other people. The ingredients which will be required to be proved to be convicted of this offence (if passed into law) are:

  1. The statement must be abusive
  2. The statement must be false
  3. The intent behind posting the abusive and false statement is to set the public against the person, group or government institution targeted by the statement.

The ingredients must be proved beyond reasonable doubt to justify a conviction.

Are we really saying that we want complete, total and unchecked freedom in our use of social media such that it would be acceptable to deliberately post false information about a person in order to damage the public image of that person? I am quite perplexed. Alongside the right to freedom of expression is the right to privacy, honour and reputation. While our Constitution recognizes only the right to private and family life under Section 37 which provides: “The privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected”; the Universal Declaration of Human Rights extends that right to include a person’s honour and reputation in Article 12 where it provides: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone had the right to the protection of the law against such interference or attacks.”

A fundamental right must be exercised responsibly and in a manner that does not infringe upon the rights of your neighbor and it is the duty of the legislature to ensure that there is a balance in the enjoyment of our fundamental rights. Therefore, in the enjoyment of your right to freedom of expression, you cannot infringe upon my right to privacy by for instance making public by posting online my private information without my consent, or my right to the good name and reputation I have built for myself by posting libelous (which by its very nature has to be false) statements about me.

I thus find that this provision is not unconstitutional; I however find it very unnecessary. There are laws already criminalizing libel in Nigeria with stiffer penalties. Defamation is an offence under Section 375 of the Criminal Code and covers both spoken and written words. Publishing a defamatory matter is punishable by imprisonment for one year while publishing a defamatory matter knowing it to be false is punishable by imprisonment for two years. Where a person publishes such defamatory matter or threatens to publish it for the purpose of extorting money (blackmail), he is liable on conviction to imprisonment for seven years.

On the 16th of May 2015, former President Goodluck Jonathan signed the Cybercrimes (Prohibition, Prevention, etc) Bill into law. One of the offences created under the Cybercrimes Act 2015 is cyber or electronic libel. Section 24 (1):

(1) A person who knowingly sends message or other matter by means of computer systems or network that

(a) is grossly offensive, pornographic or of an indecent, obscene or menacing character or causes any such message or matter to be so sent, or

(b) he knows 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 or causes such a message to be sent,

commits an offence under this Act and is liable on conviction to a fine of not more than N7,000,000.00 or imprisonment for a term of not more than 3 years or both.

For the avoidance of doubt, computer systems as defined in the Act (Section 58) covers any type of device with data processing capabilities including computers and mobile phones. This provision of the Cybercrimes Act is already being tested against two entertainment bloggers in two criminal charges pending at the Federal High Court sitting in Lagos. While Seun Oloketuyi is facing criminal charges for his story on an extra-marital affair between the MD of Fidelity Bank, Mr. Nnamdi Okonkwo and the head of the marketing team of the bank; Desmond Ike-Chima is facing criminal charges for his story on the extra-marital affair between the MD of UBA Philips Oduoza and popular actress, Genevieve Nnaji.

I am in full support of criminal prosecutions for this class of offence. The media is a powerful tool with social media arguably harnessing much more power than the traditional press especially among the youth. Any player in the social media world must therefore be aware of the enormous power he or she wields and must be ready to be held accountable for how that power is used, either by civil or criminal actions.

THE NEED FOR A TRUE SOCIAL MEDIA BILL

This brings me to the last leg of the point I want to make in this piece – the need for a true social media bill. All around the world, the law has struggled to adapt with social media as its sudden importance has given rise to a different community thereby creating new rights and powers and bringing with it, its own risks. There would need to be rules, regulations, codes, conventions by which we operate. Uncensored and ungoverned use of social media is as dangerous as over-regulation, which infringes on the right to expression. A healthy and quite honestly very thin balance has to be maintained.

These regulations should look into, among other things:

  • Intellectual Property – Social media has blown creative arts beyond the traditional intellectual property laws that are operational. Short comic skits, short stories, entertainment blogs, lifestyle blogs, pictures, opinions, etc. all need to be protected. Detailed intellectual property laws protecting original work and thought posted on social media will drive more economic value into that field. Even though Nigeria signed the World Intellectual Property Organization (WIPO) Internet Treatises (comprising of the WIPO Copyright Treaty and the WIPO Performances and Phonogram Treaty) on the 24th of March 1997, it has not done more since then. Both treaties extend existing intellectual property rights to continue to apply in the digital environment while also creating new rights and require member countries to provide a framework of basic rights to ensure creators are allowed to control and be compensated for use of their creations. An accession and subsequent domestication of the treaties would be a step forward in the right direction.
  • Consumer Protection – Users of social media also require laws protecting them from harmful information from ‘experts.’ Anyone who has access to computer and Internet connectivity is an expert on whatever field suits his or her fancy. Posting information online with the intent that it can be relied upon by users should carry along with it the attendant accountability if the information is found to be false and has indeed caused harm to the user.
  • Privacy – A user should have the right to determine if and how much of his or her personal information or data should be online as well as the right to have his or her personal data completely erased upon the decision to do so. Laws are also required protecting users from vindictive posting of their private information, pictures, conversations and private videos.
  • Laws preventing and addressing discrimination by employers based on views expressed on social media and ensuring private companies adopt non-discriminatory social media policies.
  • Laws preventing and addressing harassment on social media including cyber bullying.
  • Libel, hate speech, incendiary comments – This was included last because it is the most sensitive. This is the area that has to be done with such legislative skill and craft as to not re-ignite this conversation over our right to freedom of expression. What constitutes hate speech and incendiary comments must be specific and quantifiable and should not be left to be subject of interpretation of the enforcer of the law and should be clearly stated not to include criticism of government, its policies or actions.

Freedom of expression/speech is a critical stitch in the fabric of democracy. Law making aimed at regulating this be carefully and craft-fully done. Can we confidently assign this task to the 8th National Assembly?

Read and download the pdf version here.


About the author:

Funmilayo Odude is a legal practitioner admitted to practice as a solicitor and advocate in Nigeria. An ardent and passionate litigator, she has been engaged in all forms of dispute resolution and corporate practice and currently practices in Lagos, Nigeria.


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