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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