THE PUBLIC SPHERE with Chido Nwakanma
A rash of opinions is growing by persons claiming and elevating the social media and associated “fake news” to the number one problem in Nigeria. Information Minister Alhaji Lai Mohammed is the chief proponent. Supporters include many persons in government and their acolytes.
It is untrue, just as the framing of many issues in Nigeria today is untrue.
First, however, let us tackle the crux of the matter which proponents of “curb social media or Nigeria will die” have defined as the absence of regulation. I hear many people make this same argument. There are enough laws in our statute books on media regulation, including the social media branch.
The Cybercrimes Act, 2015 went out of its way to rope in almost everything that people do on “computer networks”. I have written extensively on this dangerous and loosely worded piece of legislation that has become the go-to for persons who feel writers have injured their reputation. Cybercrimes Act 2015 makes defamation a criminal rather than a civil offence. In consequence, governors and other high-ranking persons, including pastors and bankers, petition the police who then coral “offenders”, get a magistrate as an accomplice, and clamp offenders into jail for indeterminate periods.
Many other laws exist in our books. There are laws on the principal defamation cases of libel and slander. Section 373 of the Criminal Code defines defamation as any statement or imputation likely to injure the character or reputation of any person. It is such that exposes target to hatred, contempt or ridicule or damages him in his profession or trade.
Common categories of libel include accusations of a crime; charges of immorality; insinuations of insanity or loathsome diseases or claims of incompetence in business. There is libel per se, which is a libellous statement on its face, and libel per quod. Most libel cases fall into libel per quod distinguished by the fact that it requires proof.
Then there is innuendo, the resort to Afghanistanism that experienced writers use to avoid defamation. It does not work so well, as insinuations are also libellous.
Those who sue for defamation must contend with the defences available to the accused. They include truth, fair comment and qualified privilege.
Another area of regulation in the media that applies equally to social is the invasion of privacy. Much of that is happening on social. Privacy is a newer area of press law generally but even more so in Nigeria. It has arisen in the age of social media and society publications.
The 1999 Constitution in Section 11, Chapter 4, sub-section 37 guarantees the privacy of individuals; thus, “37. The privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected.”
Privacy actions cover four key areas. A) Intrusion or invasion of privacy is an infringement on someone’s solitude or property, either physically or electronically; B) Disclosure of embarrassing private facts, such as medical or sexual records or old indiscretions no longer relevant; C) Placing someone in a false light, making an individual appear (through a photo or docudrama technique, for example) to be something different from what is true; D) Misappropriation of likeness, using someone’s name or image for commercial advantage without permission.
As with defamation, those who sue for invasion of privacy must bring proof and contend with the defences. Crucial defences are permission, where the appellant invited the defendant to his premises (such as your Facebook, WhatsApp or Instagram platform) or event, and newsworthiness and relevance. Persons in public office will find this defence a veritable obstacle.
The records show, therefore, that we have laws and regulations on all the media, including the digital variants. The bellyaching about lack of regulation of the social media comes from a not-so-hidden source. It is a lamentation concerning what existed to governments in times past.
It concerns sedition. The tort of sedition is one of those rarely used but very potent anti-press laws. Sedition has existed through the ages as protection for persons in authority from the prying of the media. It is, however, mostly deployed by governments when they become unpopular and therefore need to muzzle the media as a key organ of civil society.
Sedition is defamation against the state or criminal defamation. Black’s Law Dictionary defines sedition thus: “Sedition is the offence of publishing, verbally or otherwise, any words or document with the intention of exciting disaffection, hatred, or contempt against the sovereign, or the government and constitution of the kingdom, or either house of parliament or the administration of justice, or of exciting his majesty’s subjects to attempt, otherwise than by lawful means, the alteration of any matter in church or state, or exciting feelings of ill will and hostility between different classes of his majesty’s subjects”.
Fear of criticism by those in authority has always been the basis and motivation for anti-press laws. Nigeria’s history with sedition dates to 1909. The Colonialists did not like the emerging new press and their criticisms. Seditious Offences Ordinance 1909 criminalised the publication of false reports or statements that exposed a government official or the government itself to ridicule or contempt. It was a precursor in intent and wordings of Decree 4 of 1984.
The social media is “the emerging new press” such as angered the colonialists in 1909. Some persons are beating the drums for a return to 1984 and the infamous Decree 4. They do not like the declarations of our courts that the Sedition Laws are anachronistic and run against the tenets of democracy and constitutionalism. They wish they could recreate the laws that existed in the regions, Eastern, Western and Northern.
Watch out, citizen, for efforts to present “fake news” as the unique challenge of governance in Nigeria today. It is untrue, and the law provides remedies where there is a real case. The challenge is good governance. All else is fake.