THE ONLINE REGULATION SERIES 2021 | NIGERIA

Nigeria prohibits terrorist use of the internet or the dissemination of terrorist content in statutes concerned primarily with cybercrime. Nigeria’s approach to terrorist content online is based on the Cybercrimes Act 2015 which is the framework for preventing and prosecuting cybercrimes; this statute specifically criminalises the use of the internet for terrorist purposes and also prohibits the dissemination of various types of content. A new bill, entitled the “Protection from Internet Falsehood and Manipulation Bill”, and a commonly known as the “social media bill”, which was introduced in 2019, aims to curb the spread of “falsehood and fake news” in Nigeria. If passed, the social media bill would add to the list of prohibited content and impose new legal requirements on tech platforms. It would additionally increase the existing limitations on freedom of expression online in Nigeria, self-censorship among them, and introduce harsh criminal penalties for ill-defined offences.

Nigeria’s regulatory framework:

• Cybercrimes Act, 2015, serves as the framework for preventing and prosecuting cybercrimes in the country. The Act prohibits the dissemination of various types of content and specifically penalises the use of internet for terrorism purposes. For example, Section 24 of the law penalises messages that are “false, for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, ill will, or needless anxiety to another” with up to three years in prison, a fine, or both.[mfn]Freedom House (2021), Nigeria: Freedom on the Net 2021[/mfn]

• The Anti-Terrorism Act, 2011: Nigeria’s counterterrorism framework, along with its 2015 amendment on the extra-territorial applications of the acts and terrorist financing offences. The act does not explicitly address terrorist use of the internet, but it contains the provisions for gathering intelligence from service providers and sharing information with foreign governments on terrorist use of the internet.

Proposed legislation

• Protection from Internet Falsehood and Manipulation Bill, known as the ‘social media bill’, introduced in 2019:
• The bill aims to curb the spread of “falsehood and fake news” in Nigeria which, according to Muhammad Sani Musa, the Senator sponsoring the bill, has “threatened the unity of the country”.[mfn]Paul Emmanuel (2019), Everything you need to know about Nigeria’s Social Media Bill and what you can do about it, TechPoint.Africa.[/mfn]
• The proposals first emerged in 2015 as “A Bill for an Act to Prohibit Frivolous Petitions and other Matters Connected therewith”, including a provision on the death penalty for “hate speech.”[mfn]Ayeni ‘Tofe (2020), Nigeria #EndSARS : Why social media bill threatens death penalty ‘for hate speech’, The Africa Report.[/mfn] At the time, the bill passed the second reading in Parliament but President Buhari distanced itself from it due to human rights concerns. Lawmakers eventually withdrew the bill.
• The bill was re-introduced in 2019 with the death penalty clause removed. The bill made headlines again in October 2020, with the government campaigning to regulate social media following the “lekki massacre” and the “#endSARS” campaign.[mfn]Ayeni (2020).[/mfn]
• The bill passed the first parliamentary reading on 5 November 2019, and the second reading on 20 October 2020. However, it was met with opposition and criticism due to its potentially corrosive effect on democracy. There are particular concerns that the bill would be used to silence political dissent and non-violent political speech in the country.[mfn]Amnesty International (2019), Nigeria: Bills on hate speech and social media are dangerous attacks on freedom of expression.[/mfn] As of November 2021, the Bill has not been passed.[mfn]Ogune Matthew (2021), Protest against social media bill persists in Abuja, The.Guardian.Ng[/mfn]
• There have been observations that the bill is very similar to Singapore’s Protection of Online Falsehoods and Manipulation Bill (POFMA), October 2019, which addresses the spread of misinformation through correction and removal orders.[mfn]Paul (2019).[/mfn]

Relevant national bodies:

• The National Broadcasting Commission (NBC) is responsible for regulating the broadcasting industry in Nigeria. The NBC was established by The National Broadcasting Commission Act (the NBC Act), which regulates the broadcasting sector in Nigeria. [mfn]Streamsowers & Köhn (2019), In brief: media law and regulation in Nigeria, Lexology[/mfn]

Key takeaways for tech platforms:

• The Cybercrimes Act creates different offences related to the use of the internet for criminal purposes and the diffusion of other types of content, such as messages that are false, for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, ill will, or needless anxiety to another.[mfn]See here for the Cybercrimes Act 2015[/mfn] The Act penalises the use of the internet for terrorist purposes, for which convicted offenders could face a maximum custodial sentence of life imprisonment.

• The Act:
• prohibits the dissemination of “racist or xenophobic material”, or content that denies, approves, or justifies genocides or crimes against humanity. Dissemination of such content can be punished with up to 5-years of imprisonment and/or a fine.
• creates specific online child sexual abuse offences, which can be punished with a 10-year prison term or a minimum fine of about $48,750.[mfn]20 million Nigerian dollars[/mfn]

• The Act mandates Internet service providers (ISPs) to keep all traffic data and subscriber information, with due regard to the right to privacy.

• The Cybercrimes Act also establishes a Cybercrime Advisory Council, comprising a representative of each of the ministries and agencies listed under the first schedule of the Act. The Council acts as a knowledge sharing institution for countering cybercrime and has the authority to issue grants for the development of cyber security defence tools and processes, as well as to advise on measures to prevent cybercrimes.

• Following a stand-off with Twitter in June 2021,[mfn]On 2 June 2021, Twitter removed a tweet by President Buhari for violation of its rules, this led to the government blocking access to the platform in the country.[/mfn] the Nigerian government instructed the National Broadcast Commission (NBC) to commence the process for licensing online platforms (“Over-The-Top (OTT) media services”).[mfn]Agbedo Onyedika (2021), Social media regulation: Between failed attempts and Buhari’s current move, The.Guardian.Ng[/mfn] On 10 June 2021, the NBC asked all online platforms to apply for a broadcast licence if they wish to operate in the country. Following this, the Minister of Information and Culture, Alhaji Lai Mohammed, asked Nigerian lawmakers to amend the National Broadcast Act to empower the NBC to regulate online platforms.

Social media bill

• If passed, the social media bill would add to the list of prohibited content and impose new legal requirements on tech platforms. Being applicable to all online platforms including (encrypted) messaging services,[mfn]The.Guardian.Ng (2015), The ‘anti social media’ bill.[/mfn] the bill prohibits users from transmitting statements that are either “false” or which:
• affect the security of any part of Nigeria.
• affect public health, public safety, or public finance.
• affect Nigeria’s relationship with other countries.
• influence the outcome of an election to any office in a general election.
• cause enmity or hatred towards a person or group of persons.

• Failure to comply with the prohibition of transmitting the above categories of content can be punished with a $826 fine or a 2 to 3 year jail term (or both) for individual users; and a $275,550 fine for corporate organisations.

• The social media bill would also allow law enforcement to order ISPs to disable access to online content, with a fine for non-compliance fine of up to approximately $25,000 per day until the order is complied with.

• Under the bill, law enforcement could also issue a “declaration” to offenders requiring them to publish a “correction notice” in a specific (printed or online) publication. Failure to comply can be punished with 12 months imprisonment and/or a fine of around $487 (for individuals); and a fine of around $13,000 for corporate bodies.[mfn]Policy and Legal Advocacy Centre (2020), Review of Relevant Information on Nigeria’s Democracy – Fact Sheet[/mfn]

Tech Against Terrorism’s analysis and commentary:

Freedom of Expression

The Cybercrimes Act and the Anti-Terrorism Act have reportedly been used to limit freedom of expression in Nigeria.[mfn]Amnesty International (2019), Nigeria: Bills on hate speech and social media are dangerous attacks on freedom of expression.[/mfn] According to Freedom House’s 2021 report on Nigeria, the Cybercrimes Act has been used to arrest bloggers for posting critical content in 2021.[mfn]Freedom House (2021), Nigeria: Freedom on the Net 2021[/mfn] The repeated arrests of users for their online activities under the Cybercrimes Act have resulted in increasing self-censorship, particularly among professional journalists who publish content online. According to Freedom House’s 2021 report on Nigeria, the Cybercrimes Act has been used to arrest bloggers for posting critical content in 2021.[mfn]Freedom House (2021), Nigeria: Freedom on the Net 2021[/mfn]

The proposed “social media bill”, similarly risks infringing on users’ rights and freedom of expression. The bill was introduced in 2019, passing the first parliamentary reading on 5 November 2019, and the second reading on 20 October 2020. However, it was met with considerable opposition and criticism due to its potentially corrosive effects on democracy. There were particular concerns that the bill is capable of silencing political dissent and non-violent political speech in the Nigeria.[mfn]Amnesty International (2019), Nigeria: Bills on hate speech and social media are dangerous attacks on freedom of expression.[/mfn] This is due to the “overbroad provisions that unduly restrict access to use of social media” and seems designed to limit freedom of expression[mfn]Amnesty International (2019), Nigeria: Bills on hate speech and social media are dangerous attacks on freedom of expression.[/mfn]. An example of this is the prohibition on users against transmitting statements which affect the security of any part of Nigeria; affect public health, public safety, or public finance; or affect Nigeria’s relationship with other countries. Such a law which could be used to punish critics of government policies and actions.[mfn]Amnesty International (2019), Nigeria: Bills on hate speech and social media are dangerous attacks on freedom of expression.[/mfn]

Ambiguous definitions of what constitutes harmful content can be abused to target legitimate speech and political dissent. Combined with steep penalties on platforms to remove harmful content, this risks the over-removal of content which could have major repercussions on freedom of expression online.

Harsh Penalties

The Cybercrimes Act 2015 provides a framework for addressing cybercrime but contains broadly worded provisions that can be used to punish legitimate expression. For example, Section 24 of the law penalises messages that are “false, for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, ill will, or needless anxiety to another” with up to three years in prison, a fine, or both.[mfn]Freedom House (2021), Nigeria: Freedom on the Net 2021[/mfn] The offence of sending messages causing “needless anxiety to another”, for example, is very broad and exemplifies the ambiguity of statutory offences punishable with long terms of imprisonment and steep fines.

The proposed social media bill similarly maintains steep penalties, such as the failure to comply with the prohibition on transmitting certain types of content can be punished with a $826 fine or a 2 to 3 year jail term (or both) for individual users; and a $275,550 fine for corporate organisations. The social media bill would also allow law enforcement to order ISPs to disable access to online content, with non-compliance fine of up to approximately $25,000 per day until the order is complied with. Under the bill, law enforcement could also issue a “declaration” to offenders requiring them to publish a “correction notice” in a specific (printed or online) newspaper. Failure to comply can be punished with 12-months imprisonment and/or about $487 fine (for individuals); and a fine of about $13,000 fine organisations. There are particular risks to freedom of speech in the broad criminalising provisions which contain steep fines for platforms unable to moderate their services, which might make companies err on the side of over-removal. This significantly undermines human rights, particularly freedom of speech, in a country in which, according to Freedom House, numerous laws assign criminal penalties and civil liability to platforms for legitimate online activities in Nigeria.[mfn]Freedom House (2021), Nigeria: Freedom on the Net 2021[/mfn]

Social media clampdown

Besides legislative proposals, such as the social media bill, which are restricted to domestic tech platforms, the Nigerian Government exercised executive powers in June 2021 to ban Twitter. To justify this, the Government cited the "persistent use of the platform for activities that are capable of undermining Nigeria's corporate existence”[mfn]Sahara Reporters (2021), Twitter Has Agreed To All Conditions Given By Buhari Government – Minister, Keyamo[/mfn]. This ban was announced a few days after the platform had deleted a post from President Buhari’s account and suspended the account for 12 hours, stating that the video which was posted violated the rules on abusive behaviour. [mfn]Freedom House (2021), Nigeria: Freedom on the Net 2021[/mfn] According to Verge, a transcript of Buhari’s remarks released in October 2021, revealed that Twitter had reached out to the Nigerian Government to try to lift the ban. According to his remarks, a presidential committee had “engaged” with Twitter to address key issues, including “national security and cohesion; registration, physical presence and representation; fair taxation; dispute resolution; and local content,” and the Nigerian Government subsequently directed that the suspension be lifted, but only if stipulated conditions were met by Twitter.[mfn]Lyons Kim (2021), Nigeria says it will lift Twitter ban if the company meets certain conditions. The Verge[/mfn] According to an article published on 29 November 2021, Twitter has agreed to all conditions, but as of November 2021, the ban is still in place and a timeline for these conditions to be fulfilled is yet to be determined.[mfn]Adenekan Samson (2021), Why Nigerian government hasn’t lifted Twitter ban – Minister, The Premium Times, Nigeria[/mfn]