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Since the Twitter ban in 2021, Nigeria has made frantic efforts to regulate and censor communications on the internet space. Recently, the Nigerian President Bola Tinubu-led federal government has unveiled a bill aimed at regulating digital platforms, focusing primarily on social media. This proposed legislation, submitted to the National Assembly, seeks to repeal and reenact the National Broadcasting Commission (NBC) Act, CAP L11, Laws of the Federation of Nigeria 2004. The bill is expected to address the growing challenges of social media. Before now, a draft of the Code of Practice for Interactive Computer Service Platforms/ Internet Intermediaries has been released to the public for consideration by NITDA. The fate of which we do not know at the time of writing this piece.

Seeing these trends, it is essential to consider the potential drawbacks of excessive censorship, the importance of enforcing freedom of expression and information, and the necessity of freedom of the press while adhering to international standards.

Striking the Balance

The central challenge posed by the proposed social media bill and other internet-related platform laws is striking the right balance between several critical aspects:

1. Freedom of the Press: Freedom of the press is an essential pillar of democracy. It allows journalists to investigate and report on issues without fear of government censorship or persecution. Any attempt to curtail this freedom can have significant consequences for the public’s right to know.
2. Freedom of Expression: Freedom of expression is a fundamental human right that includes the right to express one’s opinions and ideas freely. It is a cornerstone of democracy and must be protected even in the digital age.
3. State Policy and National Interests: Governments have a legitimate interest in safeguarding national security, public order, and societal values. Regulations are necessary to curb the spread of hate speech, fake news, and other forms of harmful content that can incite violence and discord.
4. Censorship: While regulation can serve as a necessary tool to combat harmful content, it must be carried out with caution to avoid stifling free speech and individual rights. 

The Evils of Censorship

Recognizing the potential disadvantages of heavy-handed censorship is essential when considering the impact of a law that imposes unconventional restrictions on digital content. Below are some of the negative consequences of internet censorship:

1. Suppression of Free Speech: Excessive censorship can suppress free speech, which is a cornerstone of democracy. Citizens have the right to voice their opinions, even if they criticize the government or powerful entities. Censorship can stifle this essential aspect of a democratic society.
2. Lack of Transparency: Censorship can lack transparency and accountability. Determining what content should be censored and on what grounds can become problematic, especially when those in power have significant influence over the process. Social media platforms have always been censoring the users on their platforms through policies that are not clear to users. Many of these platforms have algorithms that shadow-ban certain opinions or issues thereby hindering freedom of speech.
3. Inhibiting Innovation: Social media platforms have played a significant role in fostering innovation, entrepreneurship, and creativity. Excessive censorship may hinder the free exchange of ideas and creativity, potentially limiting the growth of the digital economy.
4. Chilling Effect on Reporting: Journalists rely on social media to report on sensitive or controversial issues. Censorship can deter reporters from tackling critical stories due to fear of government reprisals. The Internet should be a safe ground for easy reportage of news reports to inform the entire citizenry. We should be cautious not to overly restrict what can be shared on the internet, as doing so might obscure and suppress the truth in the name of advancing policies that threaten democracy.

The Social Media Bill and Section 39 of the Constitution of the Federal Republic of Nigeria

In the context of Nigeria’s proposed social media bill, it is imperative to highlight the significance of ensuring that the bill does not contradict the provisions of the Nigerian Constitution of 1999. The Constitution, as the grund norm, serves as the foundational legal document that governs the rights and freedoms of all Nigerian citizens. Specifically, Section 39 of the Nigerian Constitution addresses the crucial matter of freedom of expression, emphasizing the importance of protecting citizens’ right to express their opinions and share information. Here’s how Section 39 must be considered and respected in the context of the social media bill:

1. Freedom of Expression: Section 39(1) of the Nigerian Constitution unequivocally affirms that every person is entitled to freedom of expression. This includes the freedom to hold opinions and to receive and impart ideas and information without interference. Any legislation, such as the proposed social media bill, must be scrutinized to ensure that it does not infringe upon this fundamental right. Limiting or censoring individuals’ ability to express themselves on social media platforms would run counter to the constitutional guarantee.
2. Ownership and Operation of Media: Section 39(2) further extends the right to freedom of expression by asserting that every person is entitled to own, establish, and operate any medium for the dissemination of information, ideas, and opinions. While the Constitution recognizes certain regulatory authority for the government, as noted in the proviso, any legislation needs to respect the rights of individuals and entities to own and operate media outlets, including those in the digital space.
3. Justifiable Restrictions: Section 39(3) acknowledges that certain restrictions may be permissible in a democratic society. These restrictions must meet the criteria of being “reasonably justifiable.” In the case of the social media bill, any limitations on freedom of expression must meet this standard. The Constitution provides examples of justifiable restrictions, such as preventing the disclosure of confidential information and maintaining the authority and independence of courts. However, any proposed restrictions should be carefully assessed to ensure they do not unduly infringe upon individuals’ rights.
4. Compliance with the Constitution: Given that the Nigerian Constitution serves as the supreme law of the land, any legislation, including the social media bill, must comply with the provisions of the Constitution. It is a fundamental principle of constitutional law that no law, including new legislation, should contradict or undermine the rights and freedoms guaranteed by the Constitution. This means that the social media bill must be carefully crafted to respect the principles enshrined in the Constitution, including freedom of expression.

The Court of Appeal in the case of SOLOMON OKEDARA V ATTORNEY GENERAL OF THE FEDERATION (2019) LCN/12768(CA),  interpreting Section 39 together with Section 45 of the Constitution has held that the right to freedom of expression under Section 39 cannot be taken away “except to preserve the interest of defence, public safety, public order, public morality, public health or to protect the rights and freedom of other persons”.

Importance of the Freedom of Information Act

The Freedom of Information Act plays a vital role in the context of the proposed social media bill. This act is designed to ensure transparency and accountability by granting citizens access to government information. It allows individuals to seek and receive information critical for a functioning democracy. The enforcement of the Freedom of Information Act can help ensure that censorship is carried out transparently and in compliance with the law, safeguarding the principles of a democratic society.

Necessity of Freedom of the Press

Freedom of the press is fundamental in any democratic society. A vibrant and independent press is essential for holding the government and powerful entities accountable. It is the role of journalists to investigate, report, and inform the public about important issues. Any attempts to censor or curtail the freedom of the press can have far-reaching consequences for the public’s right to know and make informed decisions.

Adhering to International Standards

Nigeria should adhere to international standards when considering censorship measures. International bodies, such as the United Nations, have developed guidelines and standards for freedom of expression and the role of the press in a democratic society. Aligning regulations with these international standards ensures that the rights and freedoms of Nigerian citizens are respected on a global scale and that the country maintains its democratic values. Laws like the African Charter on Human and Peoples’ Rights (AFCHPR), Universal Declaration on Human Rights (UDHR), International Covenant on Civil and Political Rights (ICCPR), Declaration of Windhoek on Promoting an Independent and Pluralistic African Press, The International Declaration on The Protection of Journalists, etc. would be relevant for consideration.

Conclusion

The proposed social media bill in Nigeria presents a complex challenge: balancing freedom of the press, freedom of expression, state policy, and censorship. Striking the right balance is crucial to maintaining a democratic society that values both safety and freedom. The discussion should involve all stakeholders, including government, social media platforms, civil society, and the public, to ensure that any regulation is well-informed, and transparent, and respects individual rights and freedoms while meeting international standards. Ultimately, preserving democracy in Nigeria requires a delicate equilibrium that safeguards freedom and security in the digital age.