Freedom of Expression and Derogation Clauses: The Place of Social Media. By Dr. Olukayode Ajulo

In recent times, social media has nearly taken over from traditional media as the primary and major source of public information. Undoubtedly, this lies in their greatest advantage which is its ability to reach millions of people across the globe easily.

With just a single push of a button from anywhere across the globe, information could be shared and circulated in a split second. By this, millions of people across the world have come to view the internet as a haven for receiving first-hand information within and outside their locality.

Nigeria is not left out of this revolution as people have shown great resolve in spite of internet challenges in the country. Currently boasting of 97.2 million internet subscribers and an internet penetration of about 53%, Nigeria is undoubtedly one of the countries with the biggest internet prospects in Africa.

It was perhaps on this premises that the “social media bill” by the Nigerian senate came up for heavy criticism in the wake of its passage to law. For a bill that seemed to threaten freedom of speech and expression on social media, its chances of seeing daylight were slim.

Contrary to what used to exist, social media is now the most common means of communication in modern society. Their role in enabling individuals to express their opinions, as well as “if” and “how” they should be regulated, has recently engendered questions of considerable interest. However, common knowledge around the subject is not quite correct.

Of course, taking the lead in these discussions is the place of freedom of speech and expression, and the constitutionality or otherwise of statues that seek to limit said right, especially as enjoyed by users on Internet media spheres. Long before the struggling social media bill currently making the rounds in the National Assembly, statutory provisions within our constitution and other acts of parliament have described the scope of the right of freedom of speech.  It is thus a fundamental right but apparently not an absolute one.

Statutory Context of Freedom of Speech in Nigeria.

Freedom of speech is the right to communicate one’s opinions and ideas without fear of government retaliation or censorship. The term freedom of expression is sometimes used interchangeably, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used.

Freedom of expression is further defined as the freedom to have and hold views, thoughts or opinion. Principally, however, it is the right to have these views, thoughts or opinions aired or voiced without fear of censorship, labelling or constraint. The 1999 Constitution of the Federal Republic of Nigeria (as amended) enshrines this right in its section 39(1). Section 39(1) provides that every person shall be entitled to freedom of expression, including the freedom to hold opinions and to receive and impart ideas and information without interference while Article 19 of the Universal Declaration of Human Rights, adopted in 1948 by Nigeria provides that everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Under Nigerian law, various pronouncements have been made in this regard, however recent political developments have threatened to limit this position as political expressions have been termed as “hate speech” with the Federal Government proposing a bill which was termed an “Anti Social Media Bill” in 2016. As a result of public outcry, the bill did not scale through. The positions of decided cases have also always been to protect the freedom of expression against the interference of the Executive.

In Bauchi State House of Assembly Vs. Danna Unreported, Appeal No. CA/J/207/2013 decided on the 3/12/2014, the respondent, a member of Bauchi State House of Assembly was placed on indefinite suspension by the house for alleged derogatory remarks she made while speaking on the floor of the Assembly. In voiding this indefinite suspension, the Court of Appeal relied upon inter alia the action of the appellants violated the respondent’s right to freedom of speech. Tukur, J.C.A., who delivered the lead judgment, held emphatically on pages 60-61 as follows: “If derogatory remarks or comments are not permissible or tolerated the Bauchi State House of Assembly, that in itself is a violation of the freedom of expression, to hold opinions, to receive and impart ideas, etc., under Section 39(1) of the Constitution. What the appellant did also constitute an unwarranted attack on freedom to disseminate information, ideas and opinions. The Speaker and members of the Bauchi State House of Assembly ought not to have slammed an indefinite suspension on the respondent in this circumstance where the constituency had the interest to protect. In a democracy, conscious objectors must be tolerated. Their rights must not be trampled upon. The majority may not always be right. For example, in courts, dissenting judgments at times lay the foundation for amendment of the Constitution, statutes or rules by the legislature. For democracy to nurture in Nigeria, the opposition must be heard”.

The Court of Appeal in the case of Duke vs. Governor of Cross River State, further held that pursuant to constitution, citizens can validly stage a demonstration to demonstrate their distrust in government so far no law will be broken, and nothing will be destroyed in the process.

Sir William Blackstone (1723-1780) the eminent English jurist explained press freedom as: Liberty of the press consists in laying no previous restraints upon publication and not in freedom from censure for criminal matters where published. Every man has the undoubted right to lay what sentiment he pleases before the public…to forbid that is to destroy the freedom of press – but if he publishes what is illegal or mischievous he must face the consequences of his own tenacity. Properly explained, the terms “press” and “liberty of the press” refers not only to people employed in the press industry, but it includes the self-expressing and communicating public at large.

Prof. Ben Nwabueze, SAN subscribing to this view rightly observed that:

The press is not an institution comprising special members, it is simply a vehicle, an organ for the dissemination of ideas or opinions to the public…a newspaper, magazine, or other periodical is a business and has to be manned by workers, but its use for dissemination of ideas or opinions is open to the public at large. The protection needed is not for the workers as such but for access to the medium by any person for the dissemination of information and ideas.

Derogation Clauses.

Legal control over expression is sought and allowed even in the freest society in the world. This is to ensure that the right of one person to publish does not destroy the right of another person or the right of the society to exist and be safe from the effect of wrongful, unlawful, defamatory or mischievous publications. Therefore, the press and all users of the social media have a responsibility that comes along with the freedom of expression, and must uphold this duty and responsibility with a high sense of decency and must practice discretion on what is published or posted.

Alfred Denning, L.J said: To our way of thinking, it is elementary that each man should be able to inquire and seek after the truth until he finds it. Everyone in the land should be free to think his own thought, to have his own opinions and to give voices to them, in public or in private, so long as he does not speak ill of his neighbour, and he is free to criticize the government or any party or group of people so long as he does not incite anyone to violence.

In section 39(3) of the 1999 constitution of Nigeria, the right to freedom of expression could be restricted by a law reasonably justifiable in a democratic society, for the purpose of preventing the disclosure of information received in confidence or for the purpose of maintaining the authority and independence of the courts and also section 45(1) which provides that nothing in section 39 shall invalidate any law that is reasonably justifiable in a democratic society, in the interest of defence, public safety, public order, public morality or public health; or for the purpose of protecting the rights and freedom of other persons.

Other statutory provisions relying on section 45 (1) of the Constitution and proscribing certain expressions includes section 24 of the Cybercrime (Prohibition, Prevention, Etc.) Act, 2015 which provides that : “Any person who knowingly or intentionally sends a message or other matter by means of computer systems or network that – (a) is grossly offensive, pornographic or of an indecent, obscene or menacing character or causes any such message or matter to be so sent; or (b) he knows to be false, for the purpose of causing annoyance, inconvenience danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, ill will or needless anxiety to another or causes such a message to be sent: commits an offence under this Act. (2)Any person who knowingly or intentionally transmits or causes the transmission of any communication through a computer system or network

(a)to bully, threaten or harass another person, where such communication places another person in fear of death, violence or bodily harm or to another person; (b)containing any threat to kidnap any person or any threat to harm the person of another, any demand or request for a ransom for the release of any kidnapped person, to extort from any person, firm, association or corporation, any money or other thing of value; or (c)containing any threat to harm the property or reputation of the addressee or of another or the reputation of a deceased person or any threat to accuse the addressee or any other person of a crime, to extort from any person, firm, association, or corporation, any money or other thing of value: commits an offence under this Act…”

Section 391-394 of the Penal Code, inter alia : “whoever by words spoken or reproduced by mechanical means or intended to be read or by signs or by visible representations makes or publishes any imputation concerning a 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 hereinafter excepted, to defame that person.”

Furthermore Section 60 of the Criminal Code provides that any person who, without such justification or excuse as would be sufficient in the case of the defamation of a private person, publishes anything intended to be read, or any sign or visible representation, tending to expose to hatred or contempt in the estimation of the people of any foreign State any person exercising person who, without such justification or excuse as would be sufficient in the case of the defamation of a private person, publishes anything intended to be read, or any sign or visible representation, tending to expose to hatred or contempt in the estimation of the people of any foreign State any person exercising sovereign authority over that State is guilty of a misdemeanour, and is liable to imprisonment for two years.

The right to freedom of expression is thus premised on a person exercising same being cautious of his or her boundaries.

The Place of Freedom of Speech in a Democracy.

The right to freedom of expression is widely seen as underpinning human rights and democratic freedoms in that it guarantees the exchange of views and opinions necessary to inform public debate as well as supporting freedom of association, the right to form political parties, the questioning and challenging of public officials, and so on. It has long been valued as a foundation right in all democratic societies. It is considered a means to advance liberty for social and economic growth, allowing for the free flow of ideas necessary for innovation and bolstering accountability and transparency.

Freedom of expression, however, requires public platforms. For this reason, the media is widely recognised as an essential element of the democratic process as it is the media that gives public voice to our individual right to freedom of expression. Today, what we know as ‘the media’ has expanded beyond traditional offline print and broadcast media to encapsulate the internet, social media and a variety of mobile platforms.

In Africa, due to the type of governments in various countries, the freedom of expression has experienced various inhibitions. However, the judiciary is radically changing that as the African Court on Human and Peoples’ Rights (African Court) has directly considered the right to freedom of expression, and the validity of legislation that criminalizes defamation. In, Lohé Issa Konaté v. Burkina Faso, a journalist was convicted, imprisoned, and fined in connection with his reporting. In its decision, the African Court unanimously found that Burkina Faso violated Article 9 (freedom of expression) of the African Charter on Human and Peoples’ Rights (African Charter), Article 19 (freedom of expression) of the International Covenant on Civil and Political Rights (ICCPR), and Article 66(2) of the Revised Treaty of the Economic Community of West African States (Revised ECOWAS Treaty) by imposing a sentence that was disproportionate to the purpose of the State’s national laws.

This is a crucial pronouncement as the media provides the means for citizens to discuss and debate with each other, to advocate views and lodge protests. It allows politicians views to be known and questioned, public officials to be exposed to scrutiny. By facilitating debate it is one of the guarantors of free and fair elections.

Social Media and Freedom of Speech.

The world has longed moved from relying on traditional media such as radio stations, television programmes and newspapers to adapting social media sites as the new power bloc in disseminating information.  Media sites such as Twitter,  Facebook, Instagram, Pinterest , Whatsapp amongst so many now provide a reach hitherto unavailable to media companies. What is even more impressive is individuals have keyed into the opportunities online by creating and sharing blog posts,  tweets and status updates to an audience unlimited in numbers and geographical reach. It is therefore not surprising that the role of social media in enabling individuals to express their opinions, as well as ‘’if’’ and ‘’how’’ they should be regulated has recently engendered questions of considerable interest. As our speech increasingly takes place on social media, their power to wield greater control of our daily activities lays hidden in our subconscious mind. A 2015 study shows that the average person spends 8 hours and 41 minutes on their phone and laptops; surprisingly just 29 minutes more than the average night’s sleep. And while the internet accounted for 19% of average daily media use in 2014, it is primed to reach nearly 30% this year according to a report by quartz.

The sheer amount of time spent online  by media users increases the risk of vulnerability, and one is either a victim or a perpetrator. The world over, many cases where social media have opened people to one kind of vulnerability or the other are still being reported.

Prior to now, the echo of embarrassment used to be limited to one’s immediate friends and families and workplace. But, with social media, it’s fast extended to the online community too. Often times, it’s really hard to swallow the fact that millions of people can stab one with their words, causing a great deal of pain in the process.

And on the public front, there is also the fact that false information portrayed on social media does have the capacity to sway public opinion. No matter how good the performance a government puts up, a popular social media campaign can make a caricature of it and reduce the good intentions of government to a laughing stock. Conversely, however, inherent within status updates, tweets and posts made online by users is the power to abridge information gap, point out the errors in bad policies or become the platform to gather momentum for a popular cause or movement.

During the so-called Arab Spring, for example, social media attracted considerable comments in the fight against tyranny. Various groups in Egypt used social media platforms to spread revolutionary messages and coordinate protests. The incumbent government were even quick to identify Facebook as a threat to its agenda. Concerned about how events were fast unfolding, some government officials joined several Facebook groups to incite fears among members.

All attempt to quell the uprising were in vain. To regain control, the government had to ban the use of mobile phones and ultimately pulled a plug on Egypt’s access to the internet.

The case in Tunisia wasn’t any different as an oppressive government was met with spirited opposition, with social media playing a crucial role in the liberation. And very recently, Twitter has been instrumental in creating conversation around our own electoral process as a country, the need to have more people involved in the voting process and how this can be achieved.

When mandated to provide his views on new information and communication technology, Human Right activist, Frank La Rue, couldn’t have been more accurate when he opined that the internet is inherently democratic because it provides the public with access to information while also providing a playing field for people to actively participate in the process of communication.

As is immediately obvious, social media can be employed to both good and bad purposes. The freedom of speech and expression actively canvassed is a double edge sword on the media platform given how easily it could be abused by mostly anonymous users or sycophants. The key is in understanding the new form social media has assumed over the years.

New Age, New Media. Publishers on traditional media platforms such as television stations, radio stations and newspapers are usually put to great pains in justifying statements made on their platforms where their veracity is questioned. At law, the only escape is truth as anything less often means that such publications are labelled as defamatory and sanctioned.

Social media users have so far felt less restrained by such compulsion at law. The cases where individuals have been invited to defend posts made online have mostly been met by public outcries of persecution and tyranny. What this means is that what a newspaper company, for example, says and is qualified as defamatory may be echoed by an individual or user online with less fear of suffering the same labelling. The consequence as is often seen is the throwing of caution into the wind and the employ of social media platforms for purposes other than

constructive criticism.

As the Obasanjo case shows, however, an anonymous or identified user, making a post in his or her individual capacity wields the same power and influence available to media companies online. A single post have the power to influence opinions, sway public discourse and force a new dimension or reality through.

Let’s look at this critically. All features of traditional media outlets are now embedded in individuals with social media platforms online. Each individual enjoys an unlimited audience and addresses his thoughts or opinions to a non-restrictive general public. In essence, each post, tweet or update becomes a publishing and therefore subject to the test of its veracity or truthfulness.

The implication of the foregoing being that each individual user online commands the same kind of coverage and influence that a television or radio station  might, and such an overwhelming power must be attended by a corresponding sense of responsibility to the truth in its exercise.

While it is non-debatable that one’s right to freedom of expression is inalienable, it is also trite at law that one right stops where another begins. The right to speech and expression is no carte blanche to its abuse and mis-employment. The same burden on the shoulders of publishing houses must by simple logic be extended to online users who make categorical statements intended to be believed and portrayed as the truth by whoever is making such a post.

The Dilemma of Free Speech and the New Media Debacle.

Quite understandably, not a few persons are averse to social media censorship. The arguments start off as stated earlier from the need to ensure people’s enshrined freedom of speech to avoiding thought-speech tyranny by overzealous governments acting to protect its image. What is often ignored is the inherent power per tweet, post or update on any social media platform and the question of what is constructive criticism or opposition and what isn’t.

Nigeria is not the only African country that has had to battle the internet or social media regulation; South Africa, Uganda, DRCongo and Ghana   have been there and done that. The popular excuses given to justify the ban or regulation are usually the spread of false information, terrorism and of course, the popular one, danger. The fears of African governments are not unfounded, they are valid. Really, there is a wide-spread of fake news, misinformation and terrorism which might have been aided by social media. However, there has also been an agitation for human rights and entitlements in a way that has taken the leadership by surprise.

In 2012, as a New Year’s gift, Nigeria’s former president, Goodluck Jonathan removed the fuel subsidy which hiked the pump price up to twice the usual amount. That was the beginning of online activism, #OccupyNigeria became a trend. Twitter became the strategy camp and platform to call the government out. With a few street protests to boot, the government caved and the pump price was reversed to its original state. #BringBackOurGirls and many other activist hashtags have trended and the internet has become something similar to a people’s court, where leaders could be held accountable.

Contemporary users must be made aware, however, of the weight of the new powers they wield on media spheres and it’s attendant obligations. That said, the idea of censoring engagement on social media requires a condition that needs the laws of the land to be flexible to a large degree. For instance, the Supreme Court in the US have long been involved in this debate but finally resolved that the government can limit both the content of speech and the ability to engage in speech as long as the government has a “substantial justification.”

Admittedly, the government need to strengthen the necessary laws, shore up loopholes, and create awareness around them to deter perpetrators from the act. Of course, in the Nigerian context, there’s no telling how these measures would help maintain sanity online but surely it would allow regulation to remain relevant in a world where actual terrestrial laws appear to flounder.