Nigeria Social Media Bill and its Discontents

“THE RESTRICTIONS OF FREEDOM EXPRESSION UNDER SECTION 3 (B) OF THE SOCIAL MEDIA BILL, GOES BEYOND THE INTENDMENT OF THE CONSTITUTION AND THE ACCEPTABLE REMIT UNDER INTERNATIONAL LAW”

On November 6, 2019, Senator Muhammad Sani of Niger-East Senatorial district submitted to the 9th Senate, the Protection from Internet Falsehoods and Manipulation and Other Related Matters Bill 2019 (Social Media Bill 2019). The Bill seeks to prevent transmission of false statements/declaration of facts in Nigeria through the internet, and provides measures to counter and sanction such behaviour. Expectedly, this Bill has generated strong reactions across the country, and internationally.

Plagiarised mainly from a law with a similar title in Singapore, the Social Media bill undermines the fundamental principles of rule of law and constitutional democracy, by the vagueness of its provisions; the unfettered discretion given to the Police to determine crime and impose penalties; and by its audacious attempt to qualify judicial oversight, in its implementation. Taken together, these fatal flaws constitute a serious threat to the civic space and existential threat to democracy in Nigeria.

Bills Prohibition of Frivolous Petitions etc 2015

In 2016, a Bill for an Act to Prohibit Frivolous Petitions and other Matters Connected Therewith 2015, was introduced by the National Assembly. Because of its problematic provisions, the Bill was roundly rejected and subsequently dropped, by the National Assembly. The current Bill under consideration, seems to be another attempt at achieving the questionable objectives of the 2016 Social Media Bill. The attempt at regulating through anti-democratic means the freedom of expression of Nigerians, should worry everybody.

Internet Falsehoods and Manipulation Bill

The Internet Falsehoods and Manipulation Bill is divided into five parts with a total of 36 sections. Part 1 of the Bill outlines the objectives of the Bill. Part 2 makes provisions on the prohibition of transmission of false statements of fact.

Part 3 provides for regulations dealing with the transmission in Nigeria of false declaration of fact, while Part 4 is focused on regulation for internet intermediaries and providers of mass media services. Part 5 deals with the declaration of online locations. Reading through the Bill, it presents a picture of a harried effort to put something quickly on the table. The language is inelegant, the provisions are confusing, and the remit of its application is unrealistic. As legislative drafting goes, this Bill falls short on many levels.

Looking at this law through constitutional and international human rights standard lens, it is problematic. Section 39 (1) of the 1999 Constitution (as amended) provides that, every person shall be entitled to freedom of expression, including the freedom to hold opinions and to receive and impart ideas and information without interference. Under Section 39(2), it states that: “without prejudice to the generality of subsection (1) of this section, every person shall be entitled to own, establish and operate any medium for the dissemination of information, ideas and opinions”. It qualifies this with the provisions for licensing for electronic media. The only other derogation from the right espoused in this section is found in Section 45 (1), where the Constitution provides that some of the rights recognised under Chapter 4 can be restricted through legislation that is reasonably justifiable in a democratic society”.

Contravention of the Constitution and Article 19 ICCPR, Vagueness

To understand clearly what “reasonably justifiable in a democratic society” means, it important to quickly look at the provision of Article 19 of the International Covenant on Civil and Political Rights ICCPR, a treaty which Nigeria has signed on to and ratified. Article 19 is in all fours with Section 39 of our Constitution. Restriction on freedom of expression, according to the Human Rights Committee, must pass a three-part cumulative test derived from Article 19. This includes the principle of predictability and transparency; the principle of legitimacy, and the principle of necessity and proportionality.

Under legitimacy, the restrictions must be aimed to protect at the least one of the following – the reputation of others; national security; or public order and the restriction must be proven as necessary. Furthermore, the least restrictive means required to achieve the purpose of the law, must be applied. These give us clarity in interpreting the qualification found in Sections 39 (3) and Section 45 (1) of the Constitution.

The restrictions of freedom expression under Section 3 (b) of the Social Media Bill, goes beyond the intendment of the Constitution and the acceptable remit under international law. It provides grounds like - falsehood prejudicial to the friendly relations of Nigeria with other countries; influence the outcome of an election, incites the feeling of enmity, hatred directed to a person; or ill-will between different groups and diminish public confidence in the performance of any duty or exercise of any power of government. These grounds are vague, and subject to diverse interpretations that expose citizens to unpredictable legal consequences. They are not reasonable under a democratic government that thrives on diverse opinions, and healthy competition of ideas. They are inconsistent with the provisions of Article 19 of the ICCPR, and the Section 39 of 1999 Constitution.

The absence of clarity and ambiguity in the provisions of the Bill can easily allow for this law (when enacted), to be weaponised, used to undermine free expression, and to target free press. This clearly flouts the provisions of fair hearing, mandated by Nigeria’s Constitution. In particular, Section 36 (12) provides that “Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty, therefore, is prescribed in a written law, and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law”. Definition of an offence requires

that what constitutes an offence is clear, unambiguous and distinguishable.

Under this Bill, the term “false statement and declaration of the fact” is introduced in Section 1(a), and it is referenced throughout the Bill. The Bill does not offer any actual explanation, of what that means. The vagueness of these terms means that the government who is the implementer of this Bill, can interpret this term anyway it wants. It can be used to go against dissenting voices, free press, or any Nigerian for that matter. The possibility of a law being open to fluid interpretation with implication for individual freedom, contravenes the spirit of Section 36 of the Constitution and undermines the rule of law. The problem of vagueness, is one that colours a lot of provisions of this Bill. Terms like “friendly relationship of Nigeria with other countries”, “influence of the outcome of general elections”, “prevent incitement of feelings of enmity...” and “prevent a diminution of public confidence in the performance of any duty... power of government” as used under Section 3 of the Bill, are subject to indefinite interpretations and can easily be abused by authorities.

In the same vein Sections 6, 12,16, amongst others, provide wide discretionary powers to the Police to make a determination of what is a false statement, to issue an instruction for suspension of internet access, and to close down an internet domain. All these are carried without any reference to individual or entities that are affected by the decision, in contravention of Section 36 of the Constitution.

Section 36 (2) (a) of the Constitution provides that in exercise of any administrative power to take decision that affects civic rights, the process should “provide for an opportunity for the persons whose rights and obligations may be affected to make representations to the administering authority, before that authority makes the decision affecting that person”. Under this Bill the Police makes a determination, based on their assessment that the action they are taking is necessary for public interest. The guide under the interpretation section of the Bill compounds the problem by the vague grounds that it provides, allowing the Police to make these determinations unrestrained. Unfettered discretion as envisaged under this

Bill is antithetical to the principles of rule of law, and the spirit of Chapter 4 of our Constitution. The power of the Police to take decisions that affects rights without representation from the person or persons whose rights are implicated, contravenes Section 36 of the Constitution.

Another grave flaw with this Bill, is its attempt to stifle judicial oversight and access to judicial remedies. Sections 13 (2), 24 (2) and 30 (2) of the Social Media Bill 2019 provide that individuals aggrieved by the decision of the Police under this law cannot appeal to the High court, unless the person first applies to the Police to modify or cancel their regulation, and such application is then refused by the Police. The law empowers the Police, to review its own decision. It does not provide a timeline, for this review to happen. This effectively opens up this power, to abuse. There is a strong possibility that the Police can claim to be conducting this review for years, effectively denying any individual access to court, and hindering the capacity of the court to dispense justice. Decisions as fundamental as the restriction of freedom of speech or of the press are so grave, that it should never be left to the administrative whims of any agency of government, besides the judiciary. There is no conceivable justification, for this law to stifle access to the courts. There is no compelling national interest or administrative convenience, that supports this quasi-ouster clause. Any law that imposes an unreasonable limitation in the capacity of citizens to access remedy from the court, conflicts with the principles of rule of law and access to justice.

While we acknowledge that no right is absolute, the restrictions and limitations envisioned under this bill are needless, undemocratic and impractical. Freedom of expression is central to constitutional democracy, and provides the bedrock for a free society. The internet is one of the few public spheres, where citizens have a voice without censorship. Existing laws already provide for reasonable checks and protections, for and from the internet. This Bill only creates an additional layer of risk to our democracy, and our Constitution. It should be confined, to the dustbin of history.