Nigeria’s National Information Technology Development Agency (NITDA) on Tuesday issued a Code of Practice intended to guide the activities of social media companies in the country.
In a statement shared via Twitter, the agency explained that the “Code of Practice for Interactive Computer Service Platforms/Internet Intermediaries” is in line with section 6 of the NITDA Act 2007 which specifies the need for the standardisation, coordination and development of regulatory frameworks that would guide the activities of internet companies in the country.
In line with this mandate, NITDA’s Code of Practice will, among other things, require big social media companies such as Facebook and Twitter to set up local offices and appoint local representatives that would liaise with the government when need be.
What is NITDA?
The NITDA is the body charged with regulating issues with regard to information technology and is empowered by the NITDA Act 2007 to “create a framework for the planning, research, development, standardisation, application, coordination, monitoring, evaluation and regulation of Information Technology practices, activities and systems in Nigeria”.
The Code of Practice, according to the NITDA, intends to provide a framework for regulating, monitoring and coordinating the practices of information technology platforms that operate in Nigeria.
The Code is divided into six parts. Both Part One and Two highlights the responsibilities of the interactive computer service platforms/internet intermediaries. Additional responsibilities for large service platforms are emphasized in Part Three, Part Four provides for certain prohibitions, Part Five addresses measures to be taken to prevent misinformation and disinformation, and Part Six provides for miscellaneous provisions.
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How the new regulation may affect Nigerians
The objectives of the Code include setting out “best practices that will make the digital ecosystem safer for Nigerians and non-Nigerians in Nigeria”.
It also serves as a guide on steps to safeguard the security and interest of Nigerians and non-Nigerians regarding activities conducted on the digital ecosystem or platforms and to launch measures that will combat online harms such as disinformation and misinformation.
The recently released draft paper on the Code of Practice for these platforms as established by the NITDA has raised major concerns for stakeholders especially users of the platform.
The constitutionality of the Code’s provisions is being questioned as legal analysts say that certain provisions are contrary to the provisions of the 1999 Constitution of the Federal Republic of Nigeria.
What experts say
According to Technology Lawyer and Policy Consultant at Ground Consulting Ltd, Timi Olagunju, there are certain areas that need to be readdressed by the Agency.
“One of those areas is in Part One Section Five of the Code which allows the Agency to obtain the identity of persons who post contents online provided that the Agency can present an order of the Court to that effect to the Online Computer Platforms or Internet Intermediaries.”
Part One Section Five of the Code provides that all Interactive Computer Service/Internet Intermediaries (Platforms) shall “disclose the identity of the creator of information on its Platform when directed to do so by a Court order. Provided that an order of this nature shall apply for the purpose of preventing, detecting, investigating, or prosecuting an offence concerning the sovereignty and integrity of Nigeria, public order, security, diplomatic relationships, felony, incitement of an offence relating to any of the above or in relation to rape, child abuse, or sexually explicit material. Where the first creator of the message in question is located outside Nigeria, the first creator of that information in Nigeria shall be deemed to be the first creator.”
“The provision does not only stiffen the right to freedom of expression of people within the digital space but aims to gauge free speech and this is because people who are not even the originators or creators of posts may not freely want to post contents that are of interest to them, especially when they know that the original creator is not in Nigeria,” Olagunju says
Other areas for concern according to Olagunju are Sections Four, Five and Six of Part Two of the Code of Practice which directs Platforms to preserve a disabled or removed content and preserve the information of any person who is no longer a user of the platform.
Olagunju emphasised that “the implication of this provision is that platforms are to preserve information of persons who are no longer users of the Platform for any reason whatsoever. This is an infringement on the right to privacy as guaranteed by Section 37 of the 1999 Constitution, which guarantees the right of a person with regards to their personal information, communications, and so on”
Human Rights and Public Interest Lawyer and Partner at Edoigiawerie LP, Omoruyi Edoigiawerie posited that there must be a balance between the mischief that the law aims to cure and the appropriateness of the solution. In his view, there must be a balance between the intent or objective of the provisions of the Code and the rights of Nigerians as guaranteed by the 1999 Constitution.
According to Omoruyi, “it is understandable no freedom is absolute and the right to freedom of expression, no matter how sacrosanct it is in the 1999 Constitution, the freedom comes within the ambit of certain limitations. However such limitations must also be within the ambit of the law. The NITDA must understand that the Constitution is supreme and if parts of the Code flagrantly contravene the provisions of the Constitution, such provisions will not stand.”
“There is good cause to regulate the operators of the system to enable them to operate effectively within the Nigerian setting, but such regulation must not be seen to stiffen the rights of Nigerians”, Omoruyi says.
However, public interest and constitutional lawyer, Prince Nwafuru is of the opinion that the Code may be reviewed from time to time by the Agency by virtue of Part Five Section One. Therefore, “all hope is not lost.”
The Agency is therefore urged to address these concerns before the commencement of the Code.
