Introduction

On 13th June 2022, the Federal Government of Nigeria announced the development of a draft Code of Practice for Interactive Computer Service Platforms/Internet Intermediaries and conditions for Operating in Nigeria through the National Information Technology Development Agency (NITDA).

The announcement was followed by a stir of reactions among Nigerians especially active social media users, civil society organizations, and media organizations. Against its claims as a fitting mechanism for fighting disinformation and misinformation, some Nigerians have described the code of practice as a desperate attempt to breach the fundamental rights of citizens to express themselves and shrink dissent – similar to the Twitter ban s enforced by the government as an aftermath of the #EndSars protest. The code has also been described as a backdoor way of regulating the media with its subtle attempts to criminalize certain “unclearly defined” internet activities that are not in compliance with the code. Some are however of the view that the code is fit.

The eleven-page document is structured in a preamble segment, set out objectives, and six parts that outline the code of conduct and practice.

Part 1 of the code speaks to the responsibilities of interactive computer service platforms as well as internet intermediaries, Part 2 speaks to the responsibilities expected of internet platforms to include child protection policies, while Part 3 speaks to the compliance of large service platforms. Part 4 focuses on the removal of prohibited materials, Part 5 on measures on disinformation and misinformation, and Part 6 contains the miscellaneous segment on the violation of the code.

In a bid to appraise and clarify the intentions of the code, the Centre for Journalism Innovation and Development (CJID) organised a Twitter Spaces conversation that convened government officials, newsrooms editors, lawyers, media development professionals, journalists, civil society organisations, internet users and a representative from the National Information Technology Development Agency (NITDA) to discuss and clarify issues with regards to the new draft.

The conversation availed the public an opportunity to give constructive input and voice their concerns on perceived grey areas of the code. The hope is that the government, through NITDA, will seize the opportunity of the feedback to go back to the drawing board and address the concerns raised by citizens.

It is in this vein that the CJID have produced this document which contains evaluations, input and recommendations.

A THREAT TO FREEDOM OF EXPRESSION

The intent of the code, as stated in its cognizance segment, is to safeguard and regulate information technology systems which have become a critical infrastructure in our society, while providing protection against what has become a pervasive regime of online harm. But in its current iteration, it potentially poses the threat of constraining the right to freedom of expression, of citizens, and other institutions of the public.

While constitutional scholars and civil rights advocates accept that the right to freedom of expression is not absolute, as, in instances of defamation and libel, the full import and consequence of that rights as guaranteed under section 39 of the 1999 Constitution of Nigeria provides that “every person shall be entitled to freedom of expression, including the freedom to hold opinions and to receive and impart information without interference.” What the code of practice does, in essence, is to propose an interventionist principle, and this is reflected through terms like “intervening” and “enforcing” mirroring the way the extant Nigeria Broadcasting Code permits it, to be a complainant, the accuser, the prosecutor, in flagrant distortion of the rule of law norms which restrains a body from being the judge and the enforcer in its own case without any recourse to law.

AN OPAQUE DEFINITION OF UNLAWFUL CONTENT

Part I[Section 3] of the Code states that if a demand is made by a user, or an authorized government agency for a platform to remove ‘’unlawful content’’, there must be compliance within 24 hours. The code needs to expiate on what qualifies as unlawful and under what conditions the 24 hours ultimately apply. Does this, for example, include situations where entities which have objections to dissent on social media, including content published on media platforms, seek removal of such content? The code should not be left open-ended such that it allows for subjective interpretations. It is important to note that platforms, as defined by the code, include, social media operators, websites, blogs, media sharing websites, online discussion forums, streaming platforms, and other similar oriented intermediaries where services are either enabled or provided and transactions are conducted and where users can create, read, engage, upload, share, disseminate, modify, or access information.

This section of the code is also impracticable to the extent g that it bestows powers on a single user or a single agency to request removal without recourse to elaborate and defined judicial authorization. Reputable platforms invest significant time in gate-keeping and fact-checking of contents and as such, contents ought not to be allowed to be removed within 24 hours with such ease by invoking the session.

NEED FOR WIDE-SECTOR CONSULTATION

There was no known consultation prior to the draft of the code and neither was there a public announcement for such a gathering. A wide-sector consultation with civil society organizations, media organizations, lawyers, and professional personnel could have enriched the document with citizens’ perspectives. Such engagement would go a long way in clearing citizens’ distrust and absolving the government of accusations bordering on the encroachment on the freedom of expression. The sensitive nature of the code demands that its provision be agreed upon before the commencement of its application.

NO DETAILED PROVISION FOR CHILD PROTECTION

Although there are international standards regarding child safety protection on the internet. Part II, Section 2 [a] states ‘’Inform users through the terms of service not to create, publish, promote, modify, transmit, store or share any content or information that: a) is harmful to a child;…’’ offers little details on what constitutes safe procedures or practices as regards to child safety on the internet. The code will therefore be enriched by providing details on content categorized as harmful to children, or perhaps refer to existing laws where such have been clearly outlined.

VIOLATION OF PRIVACY POLICY

Some parts of the code violate the data and privacy policy of users. Part II {Section 4} of the code for instance states that the platform shall preserve disabled or removed content and any related record as required by law. Part II [Section 6] also states that the platform can ‘’preserve any information concerning a person that is no longer a user of a platform due to withdrawal or termination of registration, or for any other reason, as required by law’’. This contradicts the right to erasure which is an internet standard practice protected under Section 3.1(9) of the Nigeria Data Protection Regulation, which guarantees the right to have personal data erased as long as there is compliance with the grounds provided by the regulation.

“Part III [Section 5] states that on-demand users would provide government agencies with information. This violates Section 37 of the Nigerian constitution that guarantees and protects the right of Nigerians to privacy in their homes, correspondence, telecommunication and telegraphic communication. This also violates the Cyber Crime Act which criminalises data privacy breaches and prescribes that anyone or service provider in possession of any person’s personal data shall take appropriate measures to safeguard such data. Part II [Section 6] of the code violates the right to erasure which is an internet standard practice protected under Section 3.1(9) of the NDPR Act, which guarantees the right to have personal data erased, the user’s “right to be forgotten.”

Part III [Section 5] creates undue fear and tension in an emerging democracy like ours. The power for any user or government agency to request the reasons and ‘figure’ [person or persons] behind a trend is dangerous to the safe use of the internet itself. These powers extend to civil matters and as such create enormous powers with a user or agency to discover identities or the identity beyond trends online. Such enormous power can be subject to manipulations and victimization of social media users, journalists and news media organizations. It in fact threatens the anonymous relationship that may exist between journalists and their sources where such relationships become unavoidable in the interest of safety.

WHO DEFINES MORALITY AND WHAT QUALIFIES AS STATE PUBLIC INTEREST?

On pages 3 and 4, the code defines harmful as not unlawful but harmful, whereas, it contains no clear definition of what qualifies as ‘’Harmful’’. Furthermore, it explains that objectionable and prohibited materials equal contents that are objectionable on the ground of state public interest, morality, order, security, peace or are otherwise prohibited by applicable Nigerian Laws’’. First is that this section begs the question of what qualifies as “state public interest” and from whose prism it is so defined. The code also fails to define morality, highlighting the implausibility of litigating morality in Nigeria, and of its statutory relevance, or even the definitional value in the NITDA code?

RECOMMENDATIONS

That NITDA should collaborate with the Nigeria Orientation Agency (NOA) and media houses to invest in digital space education and hygiene for the purpose of keeping or making the Nigeria Internet space safe.

Since it was stated that the released code is still in a draft stage, there is a need for NITDA to collaborate with media houses and communicate to the public through a press release/press conference that the released document is a draft and not yet an act.

The policy environment is important. In the context of making this code, it is always important to consider the environment. So far, the environment has been more hostile towards the need to control social media and there are trust issues within the polity. In this, there is a need for NITDA to consult with CSOs, media houses and personnel to understand, properly draft and agree on such a bill that should be sent to parliament [for an all-inclusive input] to keep the Nigeria internet space safe without infringing on the rights of its users or impeding on the ease of doing business. The few countries that have laws regarding social media in Europe and Asia all do so through the instrumentality of statutes, not through bye-laws or agency-backed regulations because of the complexity of issues involved.

While we understand the significance of regulations of this nature, we insist that such efforts should be co-created in a robust inclusive manner that should not conflict with fundamental rights within national and international laws.

NITDA’s objectives of putting up the code which include setting up best practices that will make the digital ecosystem safer for Nigerians and non-Nigerians in Nigeria, setting up measures to combat online harms such as disinformation and misinformation, and ensuring child protection are quite laudable. It is however mandatory that the right approach to achieving them through an act of legislation by the national assembly be adopted.

SIGNED:

CWPPF Secretariat

About the Coalition for Whistleblower Protection and Press Freedom, CWPPF The CWPPF is a group of media and civil society organisations committed to upholding democracy and good governance by protecting the ethos of whistleblowing, freedom of expression and press freedom.

CWPPF members

Premium Times

The Cable

Daily Trust Newspaper

International Centre for Investigative Reporting

Wole Soyinka Centre for Investigative Journalism

Premium Times Centre for Investigative Journalism (PTCIJ)

African Centre for Media & Information Literacy (AFRICMIL)

Civic Media Lab

Civil Society Network Against Corruption (CSNAC)

International Centre for Investigative Reporting (ICIR)

International Press Centre (IPC)

Media Rights Agenda (MRA)

Nigeria Union of Journalists (NUJ)

Paradigm Initiative

Socio-Economic Rights and Accountability Project (SERAP)

HEDA Resources Centre

OrderPaper Advocacy Initiative