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majority of Nigerians and was subsequently withdrawn by the Senate following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/
[3] R
v Oakes, (1986) 1 SCR 103
[7]
Reporters Without Boarders, 2019 World Press Freedom Index
[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,
