The illegalities of social media regulation, by Adegboruwa, SAN

In the course of last week, the Honourable Minister of Information, Alhaji Lai Mohammed, was all over the news on the resolve of the government, to regulate the social media, with the attendant threats of sanctions for defaulters.

He indeed revealed that the President has approved the recommendations of a five-man Review Committee, set up to examine the existing National Broadcasting Code.

The Minister said the Committee has concluded its assignment and it came up with several far-reaching recommendations.

This is best captured in the following report monitored in the news last week:

The federal government has approved recommendations to review the National Broadcasting Code and extant broadcasting laws.

Minister of Information and Culture, Alhaji Lai Mohammed, said on Thursday that the measure was to insulate the National Broadcasting Commission (NBC) from undue political interference and exercise its regulatory powers, particularly with respect to the issuance and withdrawal of broadcasting license.

The review of the National Broadcasting Code and extant broadcasting
laws will now reflect the review of fines to be paid by erring broadcasting stations from N500,000:00 to N5M for breaches relating to hate speeches, inciting comments and indecency.

In the same light, government also warned that willful repeat of infractions on three occasions after imposing the fine on a station will lead to the suspension of the licence.”

The aftermath of these proposed reforms will most probably lead to a suggestion to amend the extant National Broadcasting Commission Act by the National Assembly, to incorporate them.

And if the antecedent of the current National Assembly is anything to go by, that amendment will sail through.

Now, what is our objection to government regulation of the social media? It is simply that it is improper to seek to control or supervise those who are to hold you accountable and it is illegal, unconstitutional and ultra vires the executive arm of government, to seek to take over the statutory functions of the court.

First, section 22 of the 1999 Constitution imposes a mandatory obligation upon the press and mass media to make government answerable to the people. How can this be done in an atmosphere where the media is gagged and strangulated?

Second, section 39 (1) of the Constitution grants direct, express and explicit freedom of expression, including the freedom to receive, disseminate and impart ideas and information without interference, the emphasis being on the words ‘without interference’, which simply means without disturbance, without any hindrance or obstruction.

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Third, it is totally wrong and unlawful for the executive arm to always seek to take over, whittle down or undermine the constitutional responsibilities of the other arms of government, especially the judiciary.

There are several laws in force in Nigeria dealing with hate speech, fake news and the like. These laws already empower the judiciary as the sole determinant of what constitutes fake news or hate speech, so there is nothing new indeed, to be achieved with the proposed review of the National Broadcasting Code.

For instance, Section 24 of the Cybercrimes Act prohibits cyber-stalking and this includes but is not limited to sending messages through the internet which are false, which annoy or inconvenience others, insult, breed hatred and intimidate others etc.

Any infraction of this provision attracts a grave punishment of N7m or an imprisonment of not more than 3 years or both.

And for the political class that is usually scared of damage or injury to its reputation, any of such false publication that destroys reputation attracts a punishment of ten years or a fine of N25m.

In the same vein, the Criminal Code Act also deals with criminal libel whilst section 59 thereof deals with false publications otherwise called fake news. So also is section 418 of the Penal Code.

The point being made is that the attempt to amend the National Broadcasting Code to replicate what is already covered in existing laws in force, is nothing but a hidden agenda to strip the judiciary of its extant powers and to turn the executive arm, in this case the National Broadcasting Commission, into a court, with the power to impose sanctions and fines for infractions already covered by existing laws.

In the light of all the above, I cannot but join other Nigerians to appeal to legislators in the National Assembly to stand up and defend the Constitution that brought them into office.

Recently, the National Assembly passed a monstrous bill to amend the Asset Management Corporation of Nigeria (AMCON) Act and same was assented to by the President.

In the said AMCON amended Act, an ouster clause was inserted in section 34 (6) thereof, which purports to stop the court from granting any order of injunction, either interim or interlocutory (or even perpetual), against AMCON in the exercise of its power to sell or transfer any asset.

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This coup against the Constitution was hatched by the National Assembly on June 28, 2019, just a few days after it was inaugurated and the President assented to it on July 29, 2019, exactly twenty years after the 1999 Constitution came into force.

In section 4 (8) of the said Constitution, it is stated clearly that the legislature, either national or of any State, shall not enact any retroactive legislation or any legislation that contains an ouster clause.

“4 (8) Save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of courts of law and of judicial tribunals established by law, and accordingly, the National Assembly or a House of Assembly shall not enact any law, that ousts or purports to oust the jurisdiction of a court of law or of a tribunal established by law.”

It was not surprising that a High Court in Lagos State has rightly declared the AMCON Act as unconstitutional, having regard to the express provisions of section 4 (8) of the Constitution above.

This should be the fate of any amendment of the National Broadcasting Code, wherever it purports to transfer the powers of the courts, to the executive to impose fines and to determine what constitutes hate speech or fake news.

The government cannot be allowed to muzzle the media, whether the traditional media or the social media, under the guise of regulation, lest we slip into some kind of civilian dictatorship.

We expect the courts to rise up to this occasion to defend the Constitution from any infraction upon the freedom of the press generally and the freedom of expression by all citizens, specifically.

I do however agree with the Honourable Minister of Information that there is need for sanity in the social media space, which can be achieved by partnering with all stakeholders in the media business, such as the National Union of Journalists, the Nigerian Guild of Editors, the Online Publishers Association, the Guild of Bloggers, the Newspaper Proprietors Association of Nigeria, the Broadcasting Organisation of Nigeria, civil society groups, etc, to achieve self-regulation by all media practitioners.

They should all have different ethical codes developed by and for themselves, to rein in all forms of extremism. This much was alluded to by the Vice-President, Professor Yemi Osinbajo recently, when he was quoted in the following words:

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“We absolutely need to be careful in our use of social media and if we do not want to promote the kind of conflict that can go completely out of hand, we must be sure that we are policing and regulating ourselves, especially, with social media.

“I don’t think that government regulation is necessarily the way to go, but I believe that we as persons of faith and we, as leaders, and those of us who use the social media actively owe a responsibility to our society and to everyone else, to ensure that we don’t allow it to become an instrument of conflict and instrument of war.”

In place of the contemplated regulation of the social media space by the government, it should rather dialogue with and encourage online bloggers and other online media practitioners, to urgently come together to develop their own code of conduct, with a view to ensuring that the use of the social media is healthy and lawful.

Furthermore, online media practitioners should endeavour to engage themselves in some form of legal assessment of their posts, through the experts, as a form of self-restraint, as if we ask the government to accord respect for the freedom granted by the Constitution, there must be corresponding maturity displayed, in the exercise of such freedom.

The media must, of its own accord, pioneer and deepen already existing efforts that help to verify facts before posting same or sharing or re-tweeting same to the public, as the law ascribes authorship to all publishers, notwithstanding the fact that the last publisher may not be the originator of the offensive publication.

Although the Nigerian media has done so well in the area of media activism, there is room for improvement, especially in the area of active engagement of the ruling class, through direct participation in the process of law-making, by attending public hearings in respect of proposed bills, as a way of holding the legislature accountable, when laws are to be amended to tame the freedom of the press.

If the Constitution has granted freedom to the press and has in like manner donated freedom of expression to all citizens, this should not be taken away through the backdoor, under any guise.

I therefore humbly urge the Honourable Minister of Information to drop the idea of social media regulation by the government, as it is clearly unconstitutional.