Advocating Freedom of Expression: The Hate Speech Bill and the Social Media Bill

Introduction

Nigeria has three arms of government – the executive, judiciary and legislature. The legislature makes law. Because our legislature is bicameral (Senate and House of Representatives) and populated (109 + 360), the process of lawmaking is cumbersome.

Usually, a person drafts a piece of legislation (or oversees the drafting, or lifts a foreign law) and sponsors it into the Senate or the House. This bill is “gazetted” to notify the public. Then it passes the first reading (where it is introduced and presented to the Speaker/Senate President). Then it passes the second reading (where it is debated. Chairs may be thrown at this point). Then it is considered by a special committee. Then it passes a third reading. Then it is passed jointly by the Senate and House of Representatives. Then it is presented to the President for his assent. If Bubu assents, then it becomes law. Yeah, cumbersome.

When a bill finishes this process, it is called an Act. Before then, it is called a what? A bill. This article takes a close look at two bills causing justifiable uproar in the public space – the Hate Speech Bill and the Social Media Bill. They have both passed the second reading. Yes, there are two separate bills. Please raise your fingers and read. The highlight of the Hate Speech Bill is that it punishes “hate speech” with life imprisonment. The highlight of the Social Media Bill is that it gives powers to withdraw access to online sites.

Predictably, the primary argument against these bills is that they restrict freedom of expression. Do you agree? To what extent? In this article, I will explain freedom of expression and the two bills. Then, you can decide for yourself.

• Freedom of Expression 

The right to freedom of expression is a big deal. It is a fundamental human right that has been recognized by many international instruments. Article 19(2) of the International Covenant for Civil and Political Rights provides:

Everyone shall have the right to freedom of expression; this right shall include the freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of their choice.

Accordingly, Section 39 of the 1999 Constitution guarantees “freedom of expression, including the right to hold opinions and to receive and impart ideas and information without interference.” Clearly, freedom of expression extends to the internet. It also protects statements that may be false or controversial. In fact, international law stipulates only three combined requirements for any limitation on the freedom of expression – a limitation must be provided for by law[1], must pursue a legitimate aim[2] and must be necessary for a permitted purpose.[3]

• The Hate Speech Bill

The National Commission for the Prohibition of Hate Speech (Establishment) Bill 2019 was introduced by the Senate Deputy Chief Whip,[4] Sabi Abdullahi. The said objectives of the bill are: (1) To promote national unity by outlawing discrimination and hate speeches (2) To create an Independent National Commission for the Prohibition of Hate Speeches

Discrimination and hate speeches

What is ethnic discrimination?

According to this bill, you “discriminate” against a person if, for ethnic reasons, you treat them “less favorably” than you treat people from another ethnic group. For example, if you are Ibo, you discriminate against a Hausa if (for ethnic reasons) you treat them less favorably than you would have treated a fellow Ibo or a Yoruba. Also, you discriminate against a person if for ethnic reasons, you put them at a particular disadvantage compared to people from another ethnic group.

What is hate speech?

Basically, you commit hate speech if you are involved[5] with threatening or insulting material that is intended (or is likely) to stir up ethnic hatred in Nigeria. Ethnic hatred is defined as hatred against a group of persons from any ethnic group indigenous to Nigeria.[6] If you are found guilty of this offence, you will be liable to life imprisonment. If your act causes loss of life to anyone, you will be punishable with death. Death. Death by hanging. Hanging. I hear this provision has been expunged anyway.

There are other offences listed in the Bill. They include harassment based on ethnicity,[7] ethnic or racial contempt[8] and victimization.[9]

The Independent National Commission for the Prohibition of Hate Speeches

This bill creates this commission to consist of a chairperson, secretary and 12 commissioners.

The purpose for which the Commission is established is to facilitate and promote a harmonious peaceful co-existence within the people of all ethnic groups indigenous to Nigeria and more importantly to achieve this objective by ensuring the elimination of all forms of hate speeches in Nigeria.

If a person feels that another person has violated any provision of this Act in relation to that person, they can write a complaint to the Commission. The Commission would then consider this complaint.

• Social Media Bill

In 2015, the Cybercrimes Act was passed. Section 24(b) of this Act illegalizes false statements intended to cause harm. A person found guilty is liable to a fine of N7,000,000 or imprisonment of 3 years or both. In the same year, a Social Media Bill surfaced in form of the Frivolous Petitions (Prohibition) Bill 2015. It passed through the first and second readings. However, it was stepped down in May 2016.

This year, its latest form, the Internet Falsehood and Manipulation Bill was sponsored by Senator Mohammed Sani Musa.

The general purpose of the Act is to prevent falsehoods and manipulations in internet transmission and correspondences in Nigeria. To suppress falsehoods and manipulations and counter the effects of such communications and transmissions and to sanction offenders with a view to encouraging and enhancing transparency by Social Media platforms using the internet correspondences.

Importantly, it targets all stakeholders on the internet – end-users, intermediaries and online locations.

Transmission of false declaration[10]

According to this bill, it is illegal for you as an internet user to transmit[11] a false statement of fact if it is likely to (i) cause insecurity (ii) harm public health, public safety, public tranquility or public finances; (iii) damage Nigeria’s relations with other countries; (iv) influence the outcome of an election; (v) cause enmity; (vi) make government look bad to the public. Hahahahahahaha

If you are found guilty of this offence, you would be punishable by a N300,000 fine or 3 years imprisonment or both. This offence extends to an “inauthentic online account or a bot”[12]. I am thinking parody accounts.

Then, the Nigerian Police Force is given powers to issue “Regulations” to internet users who have made false declarations. A “Correction Regulation” requires you to clarify that your declaration is false. A “Stop Transmission Regulation” requires the person to stop transmitting the false declaration. If a person fails to comply with any of these Regulations, the Police is empowered to issue an “Access Blocking Order”. Here, it will direct the Nigeria Communications Commission (NCC) to order the internet access service provider to disable your access to the online location.[13] Yupp you can be blocked from Nairaland in a blink.

Regulation for internet intermediaries

Again, the Police has powers to issue Regulations to the internet intermediary service.[14] It may issue a “Targeted Correction Regulation”. This requires an intermediary to transmit a notice that a declaration/statement is false. It may also issue a “Disabling Regulation”. This one requires an intermediary to disable access by end-users to the declaration. If an intermediary fails to comply with any of these Regulations, the Police is empowered to issue an “Access Blocking Order”. Again, it may direct the NCC to order the internet access service provider to disable user’s access to the online location.

Declaration of online locations

The Police may declare an online location as a “declared online location” if 3 or more false declarations have been transmitted on the online location. If the Police finds that this location is still being accessed after the declaration, it may direct the NCC to order the internet access provider (or a competent authority to order the internet intermediary) to disable access by users in Nigeria. This actually means that if any website becomes a declared online location, the Nigerian Police can ask it, or service providers, to disable access for everyone in Nigeria. Hahahahahaha. Internet access providers are liable if they fail to comply with an order of the NCC.

Conclusion

86 million Nigerians used the internet in 2016. Nigeria had the 7th highest number of internet users in the world.[15] So, internet freedom is a big deal for our internet, tech space, democracy and humor. Imagine that parody accounts on Twitter had to go. Nooo Well, just like the battle against the Frivolous Petitions (Prohibition) Bill 2015, we expect more online disapproval and more marches into the National Assembly Complex.

We must understand what we are fighting though. So, this article is important. By now, you must have a better understanding of both bills. It happens that we don’t finish reading when we are angry so I have tried to not annoy you. Or have I?

What do you think about the Hate Speech Bill and the Social Media Bill?

Are they permissible limitations on the freedom of expression?

Oya hit me in the comment section!

[1] “formulated with sufficient precision to enable the citizen to regulate his conduct”

[2] That is, it must be for the respect of the rights and reputations of others or for the protection of national security, public order, public health or morals.

[3] There must be a pressing social need. The reasons given by the government to justify the limitation must be relevant and sufficient.

[4] You victimize another person if in addition to any other offence, you do any act that is injurious to them by treating them less favorably than you would treat other persons. That is, you do this because they have made a complaint to the commission.

[5] Actually, if you use, publish, present, produce, play, provide, distribute and/or direct the performance of, any material, written and/or visual. So yeah, don’t touch it.

[6] For instance, it doesn’t protect those Chinese at Opebi, Ikeja. Err I don’t know why I am saying this.

[7] You subject another person to harassment on the basis of ethnicity when you “unjustifiably” do something that violates their dignity or creates an offensive (intimidating, hostile, degrading, humiliating) environment for them. If you commit this offence, you will liable on conviction to five years imprisonment or a fine of 10,000,000 or both.

[8] If on the basis of ethnicity or race, you “knowingly” say words that incite feelings of contempt against any person or group, you have committed this offence. You will be liable on conviction to five years of imprisonment or a fine of 10,000,000 or both.

[9]A Whip is an official of a political party whose task is to ensure party discipline in the legislature.

[10] A declaration of fact is a declaration which a reasonable person seeing, hearing or otherwise perceiving it would consider to be a representation of fact. A declaration is false if it is false or misleading, whether wholly or in part, and whether on its own or in the context in which it appears.

[11] A declaration or material is transmitted in Nigeria if it is made available to one or more end-users in Nigeria on or through the internet.

[12] “bot” means a computer program made or altered for the purpose of running automated tasks

[13] An “online location” means any website, webpage, chatroom or forum, or any other thing that is hosted on a computer.

[14] Examples of internet intermediary services are (a) social networking services; (b) search engine services; (c) content aggregation services; (d) internet-based messaging services; and (e) video-sharing services

[15] https://techpoint.africa/2016/05/18/social-media-bill-thrown-out-of-senate/