#Lekki Massacre: Can Live Video Evidence Be Relied Upon?

By Freda Odigie

On the 20^th day of October 2020, what started as a
peaceful protest for over two weeks turned bloody after the
Nigerian Army unleashed it’s bullets at unarmed protesters leading
to loss of lives and many injured. The protest tagged #ENDSARS was
carried out across many cities in Nigeria and other countries.

Fortunately, a number of protesters recorded the situation where
the world could hear and see the atrocities allegedly committed by
the Nigerian Army. Some broadcasting stations covered the situation
and showed footages of this tragic event taken at the protest
ground.

The Nigerian Broadcasting Commission (NBC) on Monday the
26^th of October 2020, six days after the tragic shooting
at Lekki Toll gate, fined three broadcasting stations, Arise TV,
African Independent Television (AIT) and Channels TV with 3 Million
Naira each. The reason given was that these stations covered the
shootings by posting unverified footages. However the fine received
some strong oppositions one of which is the Socio-Economic Rights
and Accountability Project (SERAP) who issued NBC 48 hours
ultimatum to withdraw the fine or risk legal actions. SERAP argued
that the fine was an attempt to silence the media and restrict
freedom of speech and the press. Also, some Nigerian Lawyers under
the aegis of Digital Rights Lawyers Initiative (DRLI) filed a
lawsuit against NBC over the fines.

While it is true that a number of fake and old videos were
circulating the internet after the shooting occurred, some videos
raises no iota of doubt, one of which is the live video shared by
DJ Switch on Insta Live. From the video, we could see and hear
gunshots, people running, bullets, soldiers shooting at protesters.
Despite videos corroborating the location and presence of some
Nigerian soldiers at the scene of the shooting, the Defence
Headquarters claimed the videos shared are fake. As a result,
people have questioned the authenticity of these videos, others
have argued that live videos from social media platforms like
Facebook and Instagram cannot be Photoshopped while it is being
recorded.

These questions raises quite a number of issues for
determination in this scenario.

CAN LIVE VIDEOS BE PHOTOSHOPPED?

Several live coverage on the shootings were circulated all over
social media from the phones of protesters who were present at
Lekki toll gate. Most notably the Lekki shootings where members of
the Nigerian Army were allegedly shooting at protesters. From some
of the videos, we could see that the lights illuminating the Lekki
toll gate went off almost immediately the shootings started.

From the video, we could see that it was a live coverage on
Instagram. However there are contradictory stories coming from both
the witnesses who were at the shooting scene, the Lagos State
government and the Nigerian Army, the question lingering is whether
that video is authentic or photoshopped. Where the Army initially
denied being at the scene.

Without the need for long rigmarole, the simple answer is that a
live video from social media cannot be photoshopped or edited while
it is recording because it is LIVE!!!!   While it is
possible for unverified and old videos to circulate during an
unrest, it is impossible for a live video on any social media
platforms to be photoshopped.

CAN LIVE VIDEOS BE ADMISSIBLE IN EVIDENCE?

The admissibility of electronically generated evidence is
governed by Section 84 of the Evidence Act. The section states as
follows:

• In any proceeding, a statement contained in a document produced
  by a computer shall be admissible as evidence of any facts stated
  in it of which direct oral evidence would be admissible, if it is
  shown that the conditions in subsection (2) of this section are
  satisfied in relation to the statement and computer in
  question.
• The conditions referred to in subsection (1) of this section
  are-

1. That the document containing the statement was produced by the
   computer during a period over which the computer was used regularly
   to store or process information for the purposes of any activities
   regularly carried on over that period, whether for profit or not,
   by anybody, whether corporate or not, or by an individual;
2. That over that period there was regularly supplied to the
   computer in the ordinary course of those activities information of
   the kind contained in the statement or of the kind from which the
   information so contained is derived
3. That throughout the material part of that period the computer
   was operating properly or, if not, that in any respect in which it
   was not operating properly or was out of operation during that part
   of that period was not such as to affect the production of the
   document or the accuracy of its contents; and
4. That the information contained in the statement reproduces or
   is derived from information supplied to the computer in the
   ordinary course of those activities.

Telephones are a form of computer and social media cannot
operate without the use of computers. We have seen court
proceedings, crimes committed, confessions of crime committed,
sealing of contracts, defamatory statement, receipts of payment
made and even corroboration of a crime happening live on social
media platforms.  Therefore evidence generated from social
media are admissible as they fall under Section 84 of the Evidence
Act. As long as the device containing those content fulfills the
requirements of Subsection 2 of Section 84.

IS SANCTIONING A MEDIA OUTLET WHO POST LIVE VIDEOS OF AN
EVENT IN BREACH OF FREEDOM OF THE PRESS

Among the fundamental rights a person is entitled to is the
right to Freedom of Expression and the Press. Section 39 of the
1999 Constitution provides for the right of expression and freedom
of the press. Generally, an attempt to silence or restrict the
press is a breach of the constitution.

In addition with the provisions of the constitution, Section 1.2
of the NBC Code on Coverage of Crisis, Disorder and Emergency,
Sections 1.2.6 and 1.2.7 precisely, broadcasting stations are
admonished to verify their news before posting.

With the threat of legal action, the question is will SERAP
succeed if they bring an action as the NBC is the body in charge of
broadcasting stations in the country. The NBC Code in Section 1.2.6
states that “Broadcasters using social media sources or any
emerging technologies for coverage of disasters and emergencies
shall ensue the veracity and credibility of the originating
material and content”.

Section 1.2.7 states thus “Broadcasters in using social
media sources or any emerging technologies shall ensure due caution
and professionalism in the coverage of disasters and
emergencies”.

Also the NBC cannot rely on any other law or code to justify
this sanction as Section 1 (3) the 1999 Constitution states that
“If any other law is inconsistent with the provision of this
Constitution, this Constitution shall prevail and that other law
shall to the extent of the inconsistency be void”.

What NBC would have done is to investigate the authenticity of
the news before imposing fine. The actions of NBC does not seem
sincere as this administration have been repeatedly accused of
attempting to silence the press. If they cannot prove that this
news are unverified then the fine imposed on these stations are
illegal and uncalled for. The media is an essential part of the
potency of democracy therefore an attempt to silence the media is
an attempt to disrupt democracy. The only way the fine will be
tenable is if there is evidence that the videos published by these
stations are fake.

CONCLUSION

The action of NBC reminds people of the proposed plan to curtail
hate speech by censoring social media which have received serious
backlash from citizens. With the distrust citizens have for the
government, actions taken like that of NBC will only create more
doubt and distrust of the government. The Digital Forensic Research
Lab noted that the videos showing the shooting are authentic. The
fine itself lost its credibility when the Nigerian Army admitted
that they were sent by the Lagos State government to contain the
unrest.

For a satisfying fact check, the NBC is expected to investigate
the authenticity of whatever videos shared by these broadcasting
stations before imposing any form of fine on them.

Article by Freda Odigie., Legal Practitioner at
E.A Otokhina & Co

By Freda Odigie

On the 20^th day of October 2020, what started as a
peaceful protest for over two weeks turned bloody after the
Nigerian Army unleashed it’s bullets at unarmed protesters leading
to loss of lives and many injured. The protest tagged #ENDSARS was
carried out across many cities in Nigeria and other countries.

Fortunately, a number of protesters recorded the situation where
the world could hear and see the atrocities allegedly committed by
the Nigerian Army. Some broadcasting stations covered the situation
and showed footages of this tragic event taken at the protest
ground.

The Nigerian Broadcasting Commission (NBC) on Monday the
26^th of October 2020, six days after the tragic shooting
at Lekki Toll gate, fined three broadcasting stations, Arise TV,
African Independent Television (AIT) and Channels TV with 3 Million
Naira each. The reason given was that these stations covered the
shootings by posting unverified footages. However the fine received
some strong oppositions one of which is the Socio-Economic Rights
and Accountability Project (SERAP) who issued NBC 48 hours
ultimatum to withdraw the fine or risk legal actions. SERAP argued
that the fine was an attempt to silence the media and restrict
freedom of speech and the press. Also, some Nigerian Lawyers under
the aegis of Digital Rights Lawyers Initiative (DRLI) filed a
lawsuit against NBC over the fines.

While it is true that a number of fake and old videos were
circulating the internet after the shooting occurred, some videos
raises no iota of doubt, one of which is the live video shared by
DJ Switch on Insta Live. From the video, we could see and hear
gunshots, people running, bullets, soldiers shooting at protesters.
Despite videos corroborating the location and presence of some
Nigerian soldiers at the scene of the shooting, the Defence
Headquarters claimed the videos shared are fake. As a result,
people have questioned the authenticity of these videos, others
have argued that live videos from social media platforms like
Facebook and Instagram cannot be Photoshopped while it is being
recorded.

These questions raises quite a number of issues for
determination in this scenario.

CAN LIVE VIDEOS BE PHOTOSHOPPED?

Several live coverage on the shootings were circulated all over
social media from the phones of protesters who were present at
Lekki toll gate. Most notably the Lekki shootings where members of
the Nigerian Army were allegedly shooting at protesters. From some
of the videos, we could see that the lights illuminating the Lekki
toll gate went off almost immediately the shootings started.

From the video, we could see that it was a live coverage on
Instagram. However there are contradictory stories coming from both
the witnesses who were at the shooting scene, the Lagos State
government and the Nigerian Army, the question lingering is whether
that video is authentic or photoshopped. Where the Army initially
denied being at the scene.

Without the need for long rigmarole, the simple answer is that a
live video from social media cannot be photoshopped or edited while
it is recording because it is LIVE!!!!   While it is
possible for unverified and old videos to circulate during an
unrest, it is impossible for a live video on any social media
platforms to be photoshopped.

CAN LIVE VIDEOS BE ADMISSIBLE IN EVIDENCE?

The admissibility of electronically generated evidence is
governed by Section 84 of the Evidence Act. The section states as
follows:

• In any proceeding, a statement contained in a document produced
  by a computer shall be admissible as evidence of any facts stated
  in it of which direct oral evidence would be admissible, if it is
  shown that the conditions in subsection (2) of this section are
  satisfied in relation to the statement and computer in
  question.
• The conditions referred to in subsection (1) of this section
  are-

1. That the document containing the statement was produced by the
   computer during a period over which the computer was used regularly
   to store or process information for the purposes of any activities
   regularly carried on over that period, whether for profit or not,
   by anybody, whether corporate or not, or by an individual;
2. That over that period there was regularly supplied to the
   computer in the ordinary course of those activities information of
   the kind contained in the statement or of the kind from which the
   information so contained is derived
3. That throughout the material part of that period the computer
   was operating properly or, if not, that in any respect in which it
   was not operating properly or was out of operation during that part
   of that period was not such as to affect the production of the
   document or the accuracy of its contents; and
4. That the information contained in the statement reproduces or
   is derived from information supplied to the computer in the
   ordinary course of those activities.

Telephones are a form of computer and social media cannot
operate without the use of computers. We have seen court
proceedings, crimes committed, confessions of crime committed,
sealing of contracts, defamatory statement, receipts of payment
made and even corroboration of a crime happening live on social
media platforms.  Therefore evidence generated from social
media are admissible as they fall under Section 84 of the Evidence
Act. As long as the device containing those content fulfills the
requirements of Subsection 2 of Section 84.

IS SANCTIONING A MEDIA OUTLET WHO POST LIVE VIDEOS OF AN
EVENT IN BREACH OF FREEDOM OF THE PRESS

Among the fundamental rights a person is entitled to is the
right to Freedom of Expression and the Press. Section 39 of the
1999 Constitution provides for the right of expression and freedom
of the press. Generally, an attempt to silence or restrict the
press is a breach of the constitution.

In addition with the provisions of the constitution, Section 1.2
of the NBC Code on Coverage of Crisis, Disorder and Emergency,
Sections 1.2.6 and 1.2.7 precisely, broadcasting stations are
admonished to verify their news before posting.

With the threat of legal action, the question is will SERAP
succeed if they bring an action as the NBC is the body in charge of
broadcasting stations in the country. The NBC Code in Section 1.2.6
states that “Broadcasters using social media sources or any
emerging technologies for coverage of disasters and emergencies
shall ensue the veracity and credibility of the originating
material and content”.

Section 1.2.7 states thus “Broadcasters in using social
media sources or any emerging technologies shall ensure due caution
and professionalism in the coverage of disasters and
emergencies”.

Also the NBC cannot rely on any other law or code to justify
this sanction as Section 1 (3) the 1999 Constitution states that
“If any other law is inconsistent with the provision of this
Constitution, this Constitution shall prevail and that other law
shall to the extent of the inconsistency be void”.

What NBC would have done is to investigate the authenticity of
the news before imposing fine. The actions of NBC does not seem
sincere as this administration have been repeatedly accused of
attempting to silence the press. If they cannot prove that this
news are unverified then the fine imposed on these stations are
illegal and uncalled for. The media is an essential part of the
potency of democracy therefore an attempt to silence the media is
an attempt to disrupt democracy. The only way the fine will be
tenable is if there is evidence that the videos published by these
stations are fake.

CONCLUSION

The action of NBC reminds people of the proposed plan to curtail
hate speech by censoring social media which have received serious
backlash from citizens. With the distrust citizens have for the
government, actions taken like that of NBC will only create more
doubt and distrust of the government. The Digital Forensic Research
Lab noted that the videos showing the shooting are authentic. The
fine itself lost its credibility when the Nigerian Army admitted
that they were sent by the Lagos State government to contain the
unrest.

For a satisfying fact check, the NBC is expected to investigate
the authenticity of whatever videos shared by these broadcasting
stations before imposing any form of fine on them.

Article by Freda Odigie., Legal Practitioner at
E.A Otokhina & Co