Twitter vs. FG: Who Blinks First?

By Abubakar D. Sani, Esq.

Introduction

The seemingly personal spat between President Buhari and
microblogging service provider, Twitter, decidedly took a turn for
the worse last week, in the aftermath of the taking down of the
President’s controversial threat to ‘speak the language they
understand’ directed to malcontents, which he (or his
handlers) posted on the site, to which his Government responded by
blocking access to the latter by all its Nigerian-based end-users.
Needless to say, all hell has since broken loose, as ‘the usual
suspects’ (human rights activists, foreign embassies and their
governments) have unanimously condemned the Government’s reaction
and demanded that the ban be lifted.

Indeed, the public reaction has permeated virtually every
strata, with ordinary Nigerians (not just so-called
‘netizens’) joining in the ‘Leave Twitter Alone’ chorus.
For its part, the owners of the site have (as usual) promised to
engage with the Nigerian authorities to restore access as quickly
as possible. This might be dismissed by the cynic as dictated more
by economic imperatives (Twitter reportedly has almost 40 million
Nigerian users) than anything else. The ban clearly hit where it
hurts most.

As for the Government, it appears to have seized the controversy
as an opportunity to rein in (or muzzle, depending on your point of
view) all social media platforms like Facebook, Google, Whatsapp,
Instagram (and Twitter, of course), as it publicly demanded,
through its Minister of Information, Mr. Lai Muhammed, that all of
them should register with the Government in order to continue
operating in Nigeria. This was issued at the same time as a charm
offensive which it launched, targeted at foreign (mostly Western)
missions in Nigeria, at which it tried to soften the latter’s hard
stance against the ban.

Alas, the offensive appears to have been futile: bring back
Twitter – immediately – they insisted. So, what will have to happen
for both sides to shift ground – without appearing to lose face? It
remains to be seen. For now, all options are on the table, as it is
hard to imagine that the freedom-loving online networks will
‘surrender without a fight’ to the Government’s perceived attempts
to silence or, at least, gag them.

This is where the law comes in. In this regard, it appears that
the Government’s preferred legal tool for ‘controlling’ social
media platforms is the National Broadcasting Commission
Act, 1992 and its subsidiary legislation, the
National Broadcasting Code, as amended in 2020. What does
the former, in particular, say? Is it what the Government thinks it
is, or can it really do what the Government plans to use it for –
in terms of regulating social media? Let us see . . .

The National Broadcasting Commission Act

As previously stated, this law came into life as a Military
Decree, in 1992. It subsequently took effect as an existing law
under Section 315(1) of the 1999 Constitution;
this is because, with the exception of wireless and broadcasting
provided by State Governments, the National Assembly is eminently
competent to legislate on or regulate all other kinds of
broadcasting and wireless service providers, including allocation
of wave-lengths therefor: see Item 66 of the Exclusive
Legislative List of the Constitution. This is not the end
of the story, however, as the real question is whether the sort of
service provided  by all social media platforms – not just
foreign-based ones like Twitter and Facebook – was envisaged by the
makers of the NBC Act, either at inception (in
1992, as aforesaid) or since. This calls for a closer look at the
provisions of the Act.

Section 1 of the NBC Act established the
National Broadcasting Commission and charges it, in Section
2, with the following responsibilities, inter
alia:

“(1) (b) receiving, processing and considering applications
for the establishment, ownership or operation of
radio and television stations, including –

• cable television services, direct satellite broadcast and
  any other medium of broadcasting;
• radio television stations owned, established or operated by
  the Federal, State or Local Government;

(c) recommending applications through the Minister to the
President for the grant of radio and television licences;

(d) regulating and controlling the
broadcasting industry;

(f) receiving, considering and investigating complaints from
individuals and bodies corporate or incorporate regarding the
contents of a broadcast and the conduct of a broadcasting
station;

(l) regulating ethical standards and technical excellence in
public, private and commercial broadcast stations in
Nigeria;

(n) determining and applying sanctions, including revocation
of licences of defaulting stations which do not operate in
accordance  with the Broadcast Code and in the public
interest;

(q) intervening and arbitrating in conflicts in the
broadcasting industry;

(s) serving as national consultants on any legislative or
regulatory issues on the broadcasting industry”;

“(2) No person shall operate or use any apparatus or
premises for the transmission of sound or vision by cable,
television, radio, satellite or any other medium of broadcast from
anywhere in Nigeria except under and in accordance with the
provisions of this Act”

Do the foregoing provisions or any of them entitle the
Government to regulate social media platforms? That is the
question. I’m afraid, the answer – if the provisions of
Section 2(2) of the NBC Act quoted above are
anything to go by – appears to be anything but in the affirmative.
I submit that this is the only conclusion to be drawn from a plain
and literal or grammatical construction of that clause,
particularly the words “from anywhere in Nigeria”. Does
either Twitter or Facebook (or any of the other popular
international social media platforms) operate their broadcast
equipment from anywhere in Nigeria? How does a social media
platform operate and what equipment (apart from satellites) does it
deploy in that regard? Is it like a mobile phone service provider
(MTN, GLO, Airtel, etc.) who – apart from satellites – also operate
through an extensive network to terrestrial (land-based) so-called
‘cell-sites’, complete with masts and power generators?

Or do they, i.e., the social media platforms, rather
‘piggy-back’ (more like a commercial, if not exactly a symbiotic,
relationship) on the latter? What is the practical experience of
users of the platforms? Do they have a direct, commercial
relationship with the platforms, or is such a relationship rather
indirect, through the said mobile phone networks, as well as
electronic applications (called “apps”) which are
available to download from online market places such as Google
Store or Apple Store – which can only be accessed through the
self-same mobile phone networks? If – given all the foregoing – the
Government is not exactly barking up the wrong tree in ‘targeting’
Twitter and others, can it, in the light of the provisions of
Section 2(2) of the NBC Act still proceed, in all
conscience?

So much for that.

On the side of the Government, can the ut res magit valeat
quam pereat rule of statutory interpretation avail it
vis-à-vis the provisions of the NBC Act? This
maxim enjoins the interpreter of a statute to do so in such a way
(i.e., with the objective – if at all it is possible) of saving it,
instead of letting it fail. In this regard, it appears that the
only provision of the NBC Act which remotely
authorizes the Commission (and, thus, the Government) to regulate
social media platforms, is Section 2(1)(d)
referred to above. It will be recalled that this provision empowers
the Commission to “regulate and control the broadcasting
industry”.

There is no doubt that were this provision contained in the
Constitution, it would have ‘sailed through’, as the Constitution
is judicially required to be interpreted liberally and broadly.
But, this is an Act of the National Assembly – to which no such
rule applies. So, what is the meaning of “broadcast” or
“broadcasting”? Online (again!) resource platform,
Wikipedia, defines the latter as “the
distribution of audio or video content to a dispersed audience via
any electronic mass communications medium, but typically one using
the electromagnetic spectrum (radio waves) in a one-to-many model .
. . The field of broadcasting includes both government-managed
services such as public radio and public television and private
commercial radio and commercial television”.

There is no mention of satellite-enabled encrypted microblogging
services and their ‘cousins’ (such as Twitter and Facebook
respectively). Indeed, in the United States, the Code of
Federal Regulations, Title 47, Part 97 defines
“broadcasting” as “transmissions intended for
reception by the general public, either direct or relayed”.
Unfortunately, our own laws, particularly the NBC
Act, is completely silent on what
“broadcasting” means. No doubt, this would have served as
a guide on the scope of the Act and whether it avails the
Government in its demand that the platforms register with the
Commission. Needless to say, the NBC Broadcasting Code, (amended in
2020) cannot make much of a difference, as it cannot be stronger
than the principal statute.

Conclusion

Even leaving aside the arguments about freedom of expression
under the Constitution (which, at any rate, is not absolute, given
the provisions of Section 45 of the same
Constitution), it is hard to see how the Government can
legitimately rely on the NBC Act to control
Messrs. Twitter & Co. – without amending it, that is. Short of that
. . . your guess is as good as mine.

Written By Abubakar D. Sani, Esq.

By Abubakar D. Sani, Esq.

Introduction

The seemingly personal spat between President Buhari and
microblogging service provider, Twitter, decidedly took a turn for
the worse last week, in the aftermath of the taking down of the
President’s controversial threat to ‘speak the language they
understand’ directed to malcontents, which he (or his
handlers) posted on the site, to which his Government responded by
blocking access to the latter by all its Nigerian-based end-users.
Needless to say, all hell has since broken loose, as ‘the usual
suspects’ (human rights activists, foreign embassies and their
governments) have unanimously condemned the Government’s reaction
and demanded that the ban be lifted.

Indeed, the public reaction has permeated virtually every
strata, with ordinary Nigerians (not just so-called
‘netizens’) joining in the ‘Leave Twitter Alone’ chorus.
For its part, the owners of the site have (as usual) promised to
engage with the Nigerian authorities to restore access as quickly
as possible. This might be dismissed by the cynic as dictated more
by economic imperatives (Twitter reportedly has almost 40 million
Nigerian users) than anything else. The ban clearly hit where it
hurts most.

As for the Government, it appears to have seized the controversy
as an opportunity to rein in (or muzzle, depending on your point of
view) all social media platforms like Facebook, Google, Whatsapp,
Instagram (and Twitter, of course), as it publicly demanded,
through its Minister of Information, Mr. Lai Muhammed, that all of
them should register with the Government in order to continue
operating in Nigeria. This was issued at the same time as a charm
offensive which it launched, targeted at foreign (mostly Western)
missions in Nigeria, at which it tried to soften the latter’s hard
stance against the ban.

Alas, the offensive appears to have been futile: bring back
Twitter – immediately – they insisted. So, what will have to happen
for both sides to shift ground – without appearing to lose face? It
remains to be seen. For now, all options are on the table, as it is
hard to imagine that the freedom-loving online networks will
‘surrender without a fight’ to the Government’s perceived attempts
to silence or, at least, gag them.

This is where the law comes in. In this regard, it appears that
the Government’s preferred legal tool for ‘controlling’ social
media platforms is the National Broadcasting Commission
Act, 1992 and its subsidiary legislation, the
National Broadcasting Code, as amended in 2020. What does
the former, in particular, say? Is it what the Government thinks it
is, or can it really do what the Government plans to use it for –
in terms of regulating social media? Let us see . . .

The National Broadcasting Commission Act

As previously stated, this law came into life as a Military
Decree, in 1992. It subsequently took effect as an existing law
under Section 315(1) of the 1999 Constitution;
this is because, with the exception of wireless and broadcasting
provided by State Governments, the National Assembly is eminently
competent to legislate on or regulate all other kinds of
broadcasting and wireless service providers, including allocation
of wave-lengths therefor: see Item 66 of the Exclusive
Legislative List of the Constitution. This is not the end
of the story, however, as the real question is whether the sort of
service provided  by all social media platforms – not just
foreign-based ones like Twitter and Facebook – was envisaged by the
makers of the NBC Act, either at inception (in
1992, as aforesaid) or since. This calls for a closer look at the
provisions of the Act.

Section 1 of the NBC Act established the
National Broadcasting Commission and charges it, in Section
2, with the following responsibilities, inter
alia:

“(1) (b) receiving, processing and considering applications
for the establishment, ownership or operation of
radio and television stations, including –

• cable television services, direct satellite broadcast and
  any other medium of broadcasting;
• radio television stations owned, established or operated by
  the Federal, State or Local Government;

(c) recommending applications through the Minister to the
President for the grant of radio and television licences;

(d) regulating and controlling the
broadcasting industry;

(f) receiving, considering and investigating complaints from
individuals and bodies corporate or incorporate regarding the
contents of a broadcast and the conduct of a broadcasting
station;

(l) regulating ethical standards and technical excellence in
public, private and commercial broadcast stations in
Nigeria;

(n) determining and applying sanctions, including revocation
of licences of defaulting stations which do not operate in
accordance  with the Broadcast Code and in the public
interest;

(q) intervening and arbitrating in conflicts in the
broadcasting industry;

(s) serving as national consultants on any legislative or
regulatory issues on the broadcasting industry”;

“(2) No person shall operate or use any apparatus or
premises for the transmission of sound or vision by cable,
television, radio, satellite or any other medium of broadcast from
anywhere in Nigeria except under and in accordance with the
provisions of this Act”

Do the foregoing provisions or any of them entitle the
Government to regulate social media platforms? That is the
question. I’m afraid, the answer – if the provisions of
Section 2(2) of the NBC Act quoted above are
anything to go by – appears to be anything but in the affirmative.
I submit that this is the only conclusion to be drawn from a plain
and literal or grammatical construction of that clause,
particularly the words “from anywhere in Nigeria”. Does
either Twitter or Facebook (or any of the other popular
international social media platforms) operate their broadcast
equipment from anywhere in Nigeria? How does a social media
platform operate and what equipment (apart from satellites) does it
deploy in that regard? Is it like a mobile phone service provider
(MTN, GLO, Airtel, etc.) who – apart from satellites – also operate
through an extensive network to terrestrial (land-based) so-called
‘cell-sites’, complete with masts and power generators?

Or do they, i.e., the social media platforms, rather
‘piggy-back’ (more like a commercial, if not exactly a symbiotic,
relationship) on the latter? What is the practical experience of
users of the platforms? Do they have a direct, commercial
relationship with the platforms, or is such a relationship rather
indirect, through the said mobile phone networks, as well as
electronic applications (called “apps”) which are
available to download from online market places such as Google
Store or Apple Store – which can only be accessed through the
self-same mobile phone networks? If – given all the foregoing – the
Government is not exactly barking up the wrong tree in ‘targeting’
Twitter and others, can it, in the light of the provisions of
Section 2(2) of the NBC Act still proceed, in all
conscience?

So much for that.

On the side of the Government, can the ut res magit valeat
quam pereat rule of statutory interpretation avail it
vis-à-vis the provisions of the NBC Act? This
maxim enjoins the interpreter of a statute to do so in such a way
(i.e., with the objective – if at all it is possible) of saving it,
instead of letting it fail. In this regard, it appears that the
only provision of the NBC Act which remotely
authorizes the Commission (and, thus, the Government) to regulate
social media platforms, is Section 2(1)(d)
referred to above. It will be recalled that this provision empowers
the Commission to “regulate and control the broadcasting
industry”.

There is no doubt that were this provision contained in the
Constitution, it would have ‘sailed through’, as the Constitution
is judicially required to be interpreted liberally and broadly.
But, this is an Act of the National Assembly – to which no such
rule applies. So, what is the meaning of “broadcast” or
“broadcasting”? Online (again!) resource platform,
Wikipedia, defines the latter as “the
distribution of audio or video content to a dispersed audience via
any electronic mass communications medium, but typically one using
the electromagnetic spectrum (radio waves) in a one-to-many model .
. . The field of broadcasting includes both government-managed
services such as public radio and public television and private
commercial radio and commercial television”.

There is no mention of satellite-enabled encrypted microblogging
services and their ‘cousins’ (such as Twitter and Facebook
respectively). Indeed, in the United States, the Code of
Federal Regulations, Title 47, Part 97 defines
“broadcasting” as “transmissions intended for
reception by the general public, either direct or relayed”.
Unfortunately, our own laws, particularly the NBC
Act, is completely silent on what
“broadcasting” means. No doubt, this would have served as
a guide on the scope of the Act and whether it avails the
Government in its demand that the platforms register with the
Commission. Needless to say, the NBC Broadcasting Code, (amended in
2020) cannot make much of a difference, as it cannot be stronger
than the principal statute.

Conclusion

Even leaving aside the arguments about freedom of expression
under the Constitution (which, at any rate, is not absolute, given
the provisions of Section 45 of the same
Constitution), it is hard to see how the Government can
legitimately rely on the NBC Act to control
Messrs. Twitter & Co. – without amending it, that is. Short of that
. . . your guess is as good as mine.

Written By Abubakar D. Sani, Esq.