SERAP to CBN: Expunge CDD Regulations on customers’ social media handles or face legal action
By Jude-Ken Ojinnaka
An internationally recognised Lagos based human rights and advocacy organisation, the Socio-Economic Rights and Accountability Project (SERAP) has asked the Acting Governor of Central Bank of Nigeria (CBN) Mr Folashodun Shonubi to immediately expunge from CBN Customer Due Diligence (CDD) Regulations, the unlawful provisions directing banks to obtain information on customers’ social media handles for the purpose of identification.
SERAP also asked Shonubi to withdraw the Circular number FPR/DIR/PUB/CIR/007/076 of June 20, 2023 mandating banks and other financial institutions to implement and comply with the unlawful mandatory provisions on customers’ social media handles in the CBN Regulations.
According to Section 6(a)(iv) of the CBN Regulations, banks and other financial institutions “shall identify their customer and obtain information on the social media handle of the customer.” Section 6(b)(iii) contains similar provision.
In the letter dated June 24, 2023 and signed by SERAP deputy director Kolawole Oluwadare, the organisation said: “The CBN Regulations and directive to banks to obtain details of customers’ social media address violate Nigerians’ rights to freedom of expression and privacy. It is inconsistent and incompatible with the rule of law.”
“The CBN ought to contribute to the advancement of respect for the rule of law and human rights in the discharge of its statutory functions, and not undermine or violate these fundamental legal requirements and standards”, SERAP posited
According to SERAP, “The purported mandatory requirement would inhibit Nigerians from freely exercising their human rights online. If obtained, such information may also be misused for political and other unlawful purposes.”
The letter of SERAP read in part: “We would be grateful if the recommended measures are taken within 3 days of the receipt and/or publication of this letter. If we have not heard from you by then, SERAP shall take all appropriate legal actions to compel you and the CBN to comply with our request in the public interest.”
“The mandatory requirement of social media handles or addresses of customers does not serve any legitimate aim. Such information may be used to unjustifiably or arbitrarily to restrict the rights to freedom of expression and privacy.”
“SERAP is gravely concerned that the CBN Regulations and directive to banks and other financial institutions would impermissibly restrict the constitutional and international rights to freedom of expression, privacy and victims’ right to justice and effective remedies.”
“Requiring social media handles or addresses of customers as a means of identification would have a disproportionate chilling effect on the effective enjoyment by Nigerians of their rights to freedom of expression and privacy online.”
“The CBN bears the burden of justifying any restriction on people’s freedom of expression and privacy. Under the Nigerian Constitution 1999 [as amended] and human rights treaties to which the country is a state party, any restrictions on these rights must be applied strictly so that the rights are not put in jeopardy.”
“There are other means of identification such as passport, driver’s licence, Bank Verification Number (BVN), and Tax Identification Number (TIN), which banks and other financial institutions already require their customers to provide.”
“The additional requirement of obtaining details of a customer’s social media handle or address fails to meet the requirements of legality, necessity, and proportionality.”
“The requirement of necessity implies an assessment of the proportionality of the grounds, with the aim of ensuring that the excuse of ‘regulations on customer due diligence’ is not used as a pretext to unduly intrude upon the rights to freedom of expression and privacy.”
“The CBN Regulation does not demonstrate how the use of social media handle or address as a means of identification would serve to improve banks and other financial institutions’ ability to implement and comply with the laws and regulations relating to customer due diligence.”
“The Directive by the CBN, which does not in any event carry the force of law, also fails to provide any explanation as to how social media handles or addresses can facilitate compliance with regulations relating to customer due diligence.”
“Obtaining the details of customers’ social media handles or addresses would unduly interfere with the rights to freedom of expression and privacy. It would also be disproportionate to any purported legitimate aim that the CBN seeks to achieve.”
“The facts that there are sufficient means of identification for CBN, banks and other financial institutions to rely on to meet the requirement of Know Your Customer also heighten concerns of overreach, and confer far-reaching discretion on banks and financial institutions.”
“Obtaining information on customers’ social media handles or addresses as means of identification is therefore more intrusive than necessary.”
“The cumulative effect of any attempt to access details of customers’ social media handles or addresses would be to undermine the letter, substance and spirit of the rights to freedom of expression and privacy of Nigerians.”
“The effective enjoyment of these fundamental rights constitutes a fundamental pillar for building a democratic society and strengthening democracy.”
“The CBN fails to show how details of customers’ social media handles or addresses would assist banks and other financial institutions to effectively implement and comply with the laws and regulations relating to customer due diligence.”
“Human rights, the rule of law and democracy are interlinked and mutually reinforcing and central to the universal and indivisible core values and principles of the United Nations, the African Union and the Economic Community of West African States to which Nigeria belongs.”
“The CBN is bound to respect the constitutional and international human rights of Nigerians including the rights to freedom of expression and privacy.”
“Under the principle of pacta sunt servanda and general principles governing the law of treaties, the CBN is also bound to uphold and apply in the discharge of its statutory functions the human rights treaties to which Nigeria is a state party.”
“Indeed, under international human rights law, all public or governmental institutions including the CBN are in a position to engage the responsibility of the State.”
“The positive obligations on Nigeria to ensure the rights to freedom of expression and privacy will only be fully discharged if individuals are protected against violations by institutions like the CBN.”
“The Nigerian Constitution guarantees in Section 39 the right to freedom of expression and in Section 37, the right to privacy.”
“Article 19 of the International Covenant on Civil and Political Rights and Article 9 of the African Charter on Human and Peoples’ Rights also guarantee the right to freedom of expression. Article 17 of the Covenant also guarantees the right to privacy.”
“Freedom of expression and opinion are indispensable conditions for the advancement of any person or society, as the free exercise of the right facilitates the evolution and exchange of opinions, in turn enabling principles of transparency and accountability crucial for the promotion and protection of human rights.”
“While under certain narrow circumstances, a State may restrict the right to freedom of expression, any such restrictions must be strictly limited and meet the conditions of legality (i.e. be “provided by law”), legitimate purpose, necessity, and proportionality. The CBN Regulations mandating social media handle or address as a form of identification for customers fail to meet these legal requirements.”
“In particular, Article 19(1) of the Covenant establishes the right to freedom of opinion without interference. Article 19(2) establishes Nigeria’s obligations to respect and ensure ‘the right to freedom of expression,’ which includes the freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers.”
“Under article 19(3), restrictions on the right to freedom of expression must be ‘provided by law’, and necessary ‘for respect of the rights or reputations of others’ or ‘for the protection of national security or of public order (ordre public), or of public health and morals.”
“The principles of legality, necessity, and proportionality, apply to the right to privacy in the same manner as they do to freedom of expression and other fundamental freedoms.”
“Restrictions to the rights to freedom of expression and privacy that do not comply with the elements of legality, legitimate purpose, and necessity and proportionality shall be deemed unlawful.”
