United based legal practitioner, Samuel Bolaji Samuel looks at the controversy generated recently by the anti-social media bill before the Nigerian Senate, positing that Social media is a powerful tool in the hand of the governed, a threat to the power of the oligarchy and the birth of the 4th arm of government.
Part i.
Introduction
Social media are computer mediated tools that allow people to create, share or exchange information or career interests, ideas and pictures/video’s in virtual communities and networks Buetlner,R(2015). The growth of the social media has been predicated on the need to disseminate information quickly from one end of the world to another. Also the role of the social media has helped the world achieve the status of a global village. Mark W Schaefer (2011) stated that there are three hallmarks of social media: Evolution, Revolution and Contribution. First it is an evolution of how we communicate, replacing emails in many cases. Its revolution describes the access to free instantaneous global communication, while the contribution is the ability of everyone to share and contribute as a publisher.
The continued investment in various types of research to further improve information technology across the world underlines the importance of social media to man and its society. This has led to the creation of various platforms such as, Youtube, Twitter, Facebook, Linkedin, Instagram e.tc. A 2015 survey conducted by Pew Research Centre: shows that 85 per cent of the adult population in the United States are internet users and 67 per cent are smart phone users and these smart phones are carriers of various social media apps already pre-installed or to be downloaded via the internet.
Over the years, the trajectory of social media has been redefined by various groups, governments, organisations and individuals for socio-political and economic purposes. However, there are several factors bedevilling its continued development.
This article is divided into six parts; with this part having already introduced social media as the crux of the article. Part II identifies the various challenges stultifying the development of social media in Nigeria. Part III will evaluate the various legal frameworks in place to tackle the challenges identified in Part II. Part IV will discuss the proposed anti-social media bill before the Nigerian National House of Assembly, with particular emphasis on the rationale behind the law, its significance to information technology development vis-a-vis the protection of fundamental human rights of expression. Part V will make recommendations for reforms on the existing legal frameworks identified in part III, in a bid to further strengthen social media development without losing sight of tackling the vices associated therein. Finally Part VI will give a recap of this article and conclude.
PART II.
Stultifying factors
As earlier noted, the social media is a socio-cultural, political and commercial tool in the hands of the government, the governed and various organisations. As a proven information dissemination tool: the governed and governments including organisations have embraced its usage to enable it reach out to the public on its activities. This has led to the soaring population of social media users in different parts of the world. Different surveys have revealed that various government arms, agencies and organisations operate timeline on Twitter, pages on Facebook, accounts on Instagram and Linkedin e.t.c.
These novel IT tools are not however without its challenges, as they have witnessed various setbacks in the areas of online harassments such as sexist, racist, islamophobic and xenophobic remarks, including but not limited to death threats and libellous remarks. The continued growth of the social media carries with it the baggage of online misuse and abuse which extends to vices such as cyber stalking, identity theft and online fraud, copyright violation through file sharing perpetuated on various social media platforms. The existence of these challenges represents the paradigm shift in the very essence of information dissemination.
Over the years in Nigeria, there had been various conversations on different social media platforms that have resulted in different types of abuse. Recently, a book club inspired by Chimamanda Ngozi Adichie’s feminist pamphlet, created a hashtag on twitter titled; ‘Being Female in Nigeria’. This received scathing attacks from mostly the opposite sex, particularly persons that had diverging opinions. Also on the political front, the social media platforms of Facebook and Twitter have become the battlefield for various political analysts and still manage to create the perfect coliseum for information seekers.
The social media community in Nigeria was however thrown into agog on what the future holds, as Deputy Senate leader of the hallowed chambers of the National Assembly: Senator Bala Na’ Allah representing Kogi South Senatorial District presented a bill before the Chambers on the for an Act to prohibit frivolous petitions and other matters connected therewith. This move has received wide support among lawmakers in the parliament; however this had been greeted with stiff opposition by various civil rights groups, online activists and individuals. This then creates a poser on the role of the existing legal framework in tackling the growing anomaly on the social media.
PART III
Legal framework
There is the notion that legislations need to catch up with the social media that seems to have aced it. It is on this premise that various countries have enacted laws to regulate the activities of social media operators and users. Some of these laws are specific in checking some of the excesses associated with social media as earlier identified.
In Nigeria, a Cybercrimes Act was recently enacted in 2015 to provide a comprehensive legal, regulatory and institutional framework for the prohibition, prevention, detection, prosecution and punishment of cyber offences. This Act has also promoted cyber security through the protection of intellectual property and privacy rights. Discussing a few of the 56 sections of the Act, section 21 requires that a network or computer operator, either private or public to report cyber threats to the National Emergency response team. Section 22 criminalised identity theft and impersonation, punishable upon conviction to a seven years imprisonment or an option of N 5,000,000 fine or both. The Act also covers offences such as cyber stalking, racist and xenophobic comments in sections 24 and 26 respectively. Despite the evident fact that a law like the Cybercrimes Act is a step in the right direction, it is however not all encompassing in tackling the menace arising on social media.
Before the enactment of the Cybercrimes Act, there are a plethora of legal remedies that are available to victims of libellous remarks, death threat, fraud amongst other vices earlier stated. Libellous remarks are actionable under the torts of defamation and this law has developed alongside the early post independence period in Nigeria which was characterised by vigorous political activities supported by an articulate and free press. The traditional media publication witnessed series of high profile cases such as Awolowo v Kingsway store Ltd 1968 2 All NLR, and most recently in 2015 was the 150 billion naira libel suit between Tinubu v AIT. However, online libel suit arising from the social media has not been developed in the Nigerian jurisprudence unlike the United Kingdom. The UK Independent newspaper of 14th October 2014 reported that defamation cases’ arising out of twitter has increased from six between: 2012 to 2013, to 26 between: 2013 to 2014. A notable case was Lord Mc Alpine’s action against Sally Bercow, which resulted in an award of £15,000 in damages against the latter.
Also where a person or organisation is a victim of fraud, the Criminal Code Act of Nigeria in section 383, recognises such act as an offence and prescribes punishment to that effect. This law is of general applicability irrespective of whether such fraud emanated from the social media or not. There is also the Advanced Fee fraud and other Fraud related offences Act that addresses this issue. Where such legal remedies and procedures exist, the next question is whether practical hurdles stand in the way of victim’s ability to stop these vices and get legal relief.
PART IV
The Bill
In a bid to unravel the rationale behind the bill, some writers have opined that it is a part of the parliaments plot to gag the increasing political activism on the social media. In defence, some parliament members argued it is a step in the right direction, considering the increase in false allegations and propaganda’s on the social media. As reported in the Nigerian Daily Post the bill seeks to curb frivolous petitions, false allegations and statements on the social media.
The sponsor of the bill was quoted saying that the aim of the bill is to bring sanity into the system and make way for credible and verifiable petitions. Some excerpts from the bill provide as follow;
“Where any person in order to circumvent this law makes any allegation and or publishes any statement, petition in any paper, radio, or any medium of whatever description, with malicious intent to discredit or set the public against any person or group of persons, institutions of government, he shall be guilty of an offence and upon conviction, shall be liable to an imprisonment term of two years or a fine of N4m”.
“Where any person, through text message, tweets, whats-app or through any social media posts any abusive statement knowing same to be false with intent to set the public against any person and 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 two years or a fine of N2m or both fine and imprisonment.” The bill further provides that a petitioner must depose to a sworn affidavit to back up claims in a petition.
The provisions of the bill clearly violate the fundamental human rights of freedom of expression as provided for in section 39 of the 1999 Nigerian Constitution and article 19 of the UN Charter on Universal Declaration of Human Rights. Every person can be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference. Though not an absolute right, the law is clearly checked by the torts of defamation amongst other plethora of laws.
Indications suggest that in the wake of the growing corruption crusade by the current government and the anti corruption agencies hot trail on erring public office holders, the public has become more politically conscious and are playing a key role in the growing revolution. Groups and individuals have used the social media platforms to raise issues, debate issues, propose petitions and forward the petitions to the appropriate anti corruption agencies. The social media has also taken another dimension as a tool for organising protests.
Clay Shirky (2012) opines that the social media is increasingly becoming one of the most important tools for protest worldwide. This played a key role in the Arab uprising particularly in Tunisia writes Nouri Gana (2013). In Algeria, the social media also played a key role in the protests but was met by crackdown on key websites by the government Carlos Marcial (2013). In Nigeria, the social media played a key role in the January 2012 subsidy protest.
In the wake of the recent online activism and protest against unpopular government policies and corrupt leaders, a tool for revolution has been forged; sovereignty has been returned to the people, a 4th arm of government is born.
PART V
Reccomendation for reforms
Before the House Committee makes further recommendations on the proposed bill, it is imperative that the Honourable members evaluate the following recommendations to help strengthen social media usage and enabling laws.
First the committee must engage in a holistic evaluation of the existing laws to prevent duplicity of laws. Where the proposals contained in the bill are adequately provided for in existing laws, the committee should give its recommendation for reforms where necessary to conform to best international practice without prejudicing the country’s sovereignty. Also the legislative arm must take proactive step towards the enactment of a data protection Act in Nigeria as this will also further help strengthen the democratic values of a free society without losing focus on protection of human and people’s rights.
The executive should also take the initiative of introducing policies to restructure the police and other law enforcement agencies to tackle these challenges. A robust online Police department with modern infrastructure and an active online presence will help tackle the growing menace.
The executive should take the initiative of educating the public that they are legally responsible for what they tweet or post on various social media platforms. This can be achieved through adverts and seminars.
There is also the duty reposed on the governed to report incidence of online violation, threats, suspected fraud, e.t.c. Also there is the need for the public to enforce their rights in Court where they have been abused. The public should engage in libel suits to help promote some control on people’s expression.
The judiciary should also time travel into the future of information technology by creating an online dispute resolution (ODR) platforms as part of its contribution to settle dispute emanating from the social media and other works of life. This can be achieved through creation of online Courts and designation of online magistrate to resolve these disputes. Where introduced, this will help the law and justice catch up with technology.
PART VI
Conclusion
Finally, the recent wave of public demonstration in the Middle East, Greece and Brazil up to the 2012 subsidy removal protest in Nigeria clearly demonstrates how efficient the social media has helped create a voice for the governed, help the governed mobilise to protest against junta governments and the policies of failing governments.
From the foregoing, it is evident the major challenge faced by the social media in Nigeria is not the absence of regulation but rather the practical hurdles of enforcement mechanism. The executive, legislative and judicial arm of government should engage in a combined effort for a policy direction towards an improved social media.
Social media: a powerful tool in the hand of the governed, a threat to the power of the oligarchy, the birth of the 4th arm of government.
Samuel Bolaji Samuel
LLB, BL, LLM, ACIarb (UK).
Samuels©
