Freedom of expression and the policing of social media

“In the course of my stay in the United Kingdom, I have been
kept in daily touch with events at home. Nigerians are robust and
lively in discussing their affairs, but I was distressed to notice
that some of the comments, especially in the social media have
crossed our national red lines by daring to question our collective
existence as a nation. This is a step too far.”
– President Muhammadu Buhari in his 21st August 2017
address to the nation.

It does not seem like something that should be happening in a
democracy, but more and more, there are attempts at muzzling
citizens and curtailing their fundamental freedom of expression.
Granted, our fundamental rights are not absolute, but, the current
posture of government looks like an attempt to deprive citizens of
even the basic right to expression. The choice of words in the
President’s address and the recent public statement by the Nigerian
Army that it monitors social media activity for anti-government and
anti-military information recall a darker period in our history.
But this is supposedly a democratic government.

There is a twitter handle @DefenseMonitor, purportedly the
“Official Twitter Monitoring Account of the Nigerian Armed Forces.
Nigeria Military.” In today’s world of terrorism and cybercrime,
many nations have enacted internet monitoring laws for public
safety reasons. However, given our history, we have plenty to fear.
This dragnet is not only designed to protect the public, it is
looking more like an attempt to curtail our freedom of expression
and shield the government from its duty to account to the citizens
for its actions.

Nigerians are unhappy with the current instability – economic
and political – that plagues us, and social media has given every
citizen with internet access and a smartphone a voice to express
themselves and hold government officials accountable to the
citizens they serve.

Section 39(1) of the Constitution of Nigeria provides that,
“Every person shall be entitled to freedom of expression, including
freedom to hold opinions and to receive and impart ideas and
information without interference.” Section 39(2) goes further to
grant every person the right to own, establish and operate any
medium for the dissemination of information, ideas and opinions
subject to laws enacted by the National Assembly (for instance, no
person can own, establish or operate a television of wireless
broadcasting station without the authorisation of the
government).

Limitation on our right to freedom of expression is not new.
Section 39(3) of the Constitution limits the right, permitting laws
that are reasonably justifiable in a democratic society such as
laws regulating telephony and wireless broadcasting. Section 45 of
the Constitution defines such justifiable laws as those in the
interest of defence, public safety, public order, public morality
or public health; or to protect the rights and freedom of other
persons. The laws in effect curtailing our freedom of expression
can be found in the Penal Code, the Criminal Code and the recently
enacted CyberCrimes (Prohibition, Prevention, etc) Act of 2015.

Section 59(1) of the Criminal Code provides that, “Any person
who publishes or reproduces any statement, rumour or report which
is likely to cause fear and alarm to the public or to disturb the
public peace, knowing or having reason to believe that such
statement, rumour or report is false shall be guilty of a
misdemeanour and liable, on conviction, to imprisonment for three
years.” Any person accused of such publication will have a defence
if they can show that they took reasonable steps to verify the
accuracy of the statement, rumour or report prior to
publication.

In Nigeria, defamation is a crime rather than a civil wrong.
Criminal defamation is provided for in Chapter 33 (Sections 373 –
381) of the Criminal Code. Defamation can be against the living or
the dead and is defined in Section 373 as a “… matter likely to
injure the reputation of any person by exposing him to hatred,
contempt, or ridicule, or likely to damage any person in his
profession or trade by an injury to his reputation.” Defamatory
acts can be words expressed in spoken or written words, audible
sounds, or sign, and may be expressed either directly or by
insinuation or irony. Punishment for publishing a defamatory matter
(exhibiting it in public or causing it to be heard, read or seen by
another, person) ranges from one to seven years imprisonment (one
year imprisonment for just publishing; two years for publishing
with knowledge of falsity; and seven years for publishing or
threatening to publish with the intent to extort). There is no
offence if the matter published is fair comment made for the public
benefit, and the matter so published is true.

In the Penal Code, which applies to Northern States, criminal
defamation is provided for in Chapter 23 (Sections 391 – 395).
Section 391(1) provides that, “[w]hoever by words either spoken or
reproduced by mechanical means or intended to be read or by signs
or by visible representations makes or publishes any imputation
concerning any person, intending to harm or knowing or having
reason to believe that such imputation will harm the reputation of
such person, is said, save in the cases… excepted, to defame that
person.” Similar to the provisions of the Criminal Code, the Penal
Code does not criminalise acts that impute the truth about a person
done for the public good. The punishment for defamation under the
Penal Code is a term of imprisonment up to two years, or a fine, or
both.

Section 24 of the Cybercrimes (Prohibition, Prevention, etc) Act
of 2015 goes beyond defamation and criminalises the bullying,
harassment and threats of harm to a person, their property or
reputation. The penalties under the Cybercrimes Act are stiff, with
imprisonment terms up to 10 years and fines up to N25m.

Some of the advantages of self-expression/publication via social
media – speed of information dissemination; global reach, etc. –
are also its dangers when the information being publicised is false
or hateful. Words are powerful, they can empower and they can
destroy. Not all expressions on social media add value to our
social dialogue, in fact, some are harmful to our society.
Nevertheless, we cannot discount the importance of the freedom of
expression and the need for every citizen under a democracy to have
a say in the affairs of the nation, whether we agree with their
position or not. A democratic government elected by the people for
the people cannot shut its ears to the voice of the people. The
expressions of thoughts and opinions on social media are part of
that voice.

These national red lines referred to in the President’s address
could be anything, but the statutory offences listed above should
guide those who exercise their freedom of expression via social
media.

“In the course of my stay in the United Kingdom, I have been
kept in daily touch with events at home. Nigerians are robust and
lively in discussing their affairs, but I was distressed to notice
that some of the comments, especially in the social media have
crossed our national red lines by daring to question our collective
existence as a nation. This is a step too far.”
– President Muhammadu Buhari in his 21st August 2017
address to the nation.

It does not seem like something that should be happening in a
democracy, but more and more, there are attempts at muzzling
citizens and curtailing their fundamental freedom of expression.
Granted, our fundamental rights are not absolute, but, the current
posture of government looks like an attempt to deprive citizens of
even the basic right to expression. The choice of words in the
President’s address and the recent public statement by the Nigerian
Army that it monitors social media activity for anti-government and
anti-military information recall a darker period in our history.
But this is supposedly a democratic government.

There is a twitter handle @DefenseMonitor, purportedly the
“Official Twitter Monitoring Account of the Nigerian Armed Forces.
Nigeria Military.” In today’s world of terrorism and cybercrime,
many nations have enacted internet monitoring laws for public
safety reasons. However, given our history, we have plenty to fear.
This dragnet is not only designed to protect the public, it is
looking more like an attempt to curtail our freedom of expression
and shield the government from its duty to account to the citizens
for its actions.

Nigerians are unhappy with the current instability – economic
and political – that plagues us, and social media has given every
citizen with internet access and a smartphone a voice to express
themselves and hold government officials accountable to the
citizens they serve.

Section 39(1) of the Constitution of Nigeria provides that,
“Every person shall be entitled to freedom of expression, including
freedom to hold opinions and to receive and impart ideas and
information without interference.” Section 39(2) goes further to
grant every person the right to own, establish and operate any
medium for the dissemination of information, ideas and opinions
subject to laws enacted by the National Assembly (for instance, no
person can own, establish or operate a television of wireless
broadcasting station without the authorisation of the
government).

Limitation on our right to freedom of expression is not new.
Section 39(3) of the Constitution limits the right, permitting laws
that are reasonably justifiable in a democratic society such as
laws regulating telephony and wireless broadcasting. Section 45 of
the Constitution defines such justifiable laws as those in the
interest of defence, public safety, public order, public morality
or public health; or to protect the rights and freedom of other
persons. The laws in effect curtailing our freedom of expression
can be found in the Penal Code, the Criminal Code and the recently
enacted CyberCrimes (Prohibition, Prevention, etc) Act of 2015.

Section 59(1) of the Criminal Code provides that, “Any person
who publishes or reproduces any statement, rumour or report which
is likely to cause fear and alarm to the public or to disturb the
public peace, knowing or having reason to believe that such
statement, rumour or report is false shall be guilty of a
misdemeanour and liable, on conviction, to imprisonment for three
years.” Any person accused of such publication will have a defence
if they can show that they took reasonable steps to verify the
accuracy of the statement, rumour or report prior to
publication.

In Nigeria, defamation is a crime rather than a civil wrong.
Criminal defamation is provided for in Chapter 33 (Sections 373 –
381) of the Criminal Code. Defamation can be against the living or
the dead and is defined in Section 373 as a “… matter likely to
injure the reputation of any person by exposing him to hatred,
contempt, or ridicule, or likely to damage any person in his
profession or trade by an injury to his reputation.” Defamatory
acts can be words expressed in spoken or written words, audible
sounds, or sign, and may be expressed either directly or by
insinuation or irony. Punishment for publishing a defamatory matter
(exhibiting it in public or causing it to be heard, read or seen by
another, person) ranges from one to seven years imprisonment (one
year imprisonment for just publishing; two years for publishing
with knowledge of falsity; and seven years for publishing or
threatening to publish with the intent to extort). There is no
offence if the matter published is fair comment made for the public
benefit, and the matter so published is true.

In the Penal Code, which applies to Northern States, criminal
defamation is provided for in Chapter 23 (Sections 391 – 395).
Section 391(1) provides that, “[w]hoever by words either spoken or
reproduced by mechanical means or intended to be read or by signs
or by visible representations makes or publishes any imputation
concerning any person, intending to harm or knowing or having
reason to believe that such imputation will harm the reputation of
such person, is said, save in the cases… excepted, to defame that
person.” Similar to the provisions of the Criminal Code, the Penal
Code does not criminalise acts that impute the truth about a person
done for the public good. The punishment for defamation under the
Penal Code is a term of imprisonment up to two years, or a fine, or
both.

Section 24 of the Cybercrimes (Prohibition, Prevention, etc) Act
of 2015 goes beyond defamation and criminalises the bullying,
harassment and threats of harm to a person, their property or
reputation. The penalties under the Cybercrimes Act are stiff, with
imprisonment terms up to 10 years and fines up to N25m.

Some of the advantages of self-expression/publication via social
media – speed of information dissemination; global reach, etc. –
are also its dangers when the information being publicised is false
or hateful. Words are powerful, they can empower and they can
destroy. Not all expressions on social media add value to our
social dialogue, in fact, some are harmful to our society.
Nevertheless, we cannot discount the importance of the freedom of
expression and the need for every citizen under a democracy to have
a say in the affairs of the nation, whether we agree with their
position or not. A democratic government elected by the people for
the people cannot shut its ears to the voice of the people. The
expressions of thoughts and opinions on social media are part of
that voice.

These national red lines referred to in the President’s address
could be anything, but the statutory offences listed above should
guide those who exercise their freedom of expression via social
media.