The code may threaten individual and corporate freedoms in Nigeria, writes Sonny Aragba-Akpore
It is not yet clear what the new code being introduced by the National Information Technology Development Agency (NITDA) hopes to achieve, but preliminary insight into the code suggests that computer interactions and online privacy will be threatened.
With lawful interception of communication regulations already in the kitty of government, the new code of practice for interactive computer service platforms by NITDA may signal the end of privacy for online platforms in Nigeria.
This code is certainly in tandem with a statement credited to Information and Culture Minister, Lai Mohammed on the plan to regulate social media in the country.
It is government thinking that the ‘excesses’ on social media should be curtailed. But there are already in place the Cybercrime Act of 2015 and The Lawful Interception for Communication Regulations of 2019 which are believed to be sufficient guidelines to manage and not regulate online presence but no matter how the government thinks about it, the new code is sure going to encroach on individual and corporate privacies.
And the NITDA draft code has technically brought to bear the reality of social media regulations.
NITDA claims it is riding on Section 6 of the NITDA Act 2007, to standardize, coordinate and develop regulatory frameworks for all Information Technology (IT) practices in Nigeria. It claims further power vested on it by President Muhammadu Buhari, to develop a Code of Practice for Interactive Computer Service Platforms/Internet Intermediaries (Online Platforms), in collaboration with relevant Regulatory Agencies and Stakeholders.
NITDA says it is presenting to the public a Code of Practice for Interactive Computer Service Platforms/Internet Intermediaries for further review and input. The public has till Friday, June 24, 2022 to make input to this.
NITDA claims that this Code of Practice is aimed at protecting the fundamental human rights of Nigerians and non-Nigerians living in the country as well as define guidelines for interacting on the digital ecosystem. “This is in line with international best practices as obtainable in democratic nations such as the United States of America, United Kingdom, European Union, and United Nations.” a statement by Hadiza Umar, in charge of Corporate & External Affairs at NITDA said.
The statement further claims that the Code of Practice was developed in collaboration with the Nigerian Communications Commission (NCC) and National Broadcasting Commission (NBC), as well as input from Interactive Computer Service Platforms such as Twitter, Facebook, WhatsApp, Instagram, Google, and Tik Tok amongst others. Other relevant stakeholders with peculiar knowledge in this area were consulted such as Civil Society Organizations and expert groups. “The results of this (sic) consultations were duly incorporated into the Draft Code of Practice.”
The new global reality is that the activities conducted on these Online Platforms wield enormous influence over our society, social interaction, and economic choices. Hence, the Code of Practice is an intervention to recalibrate the relationship of Online Platforms with Nigerians in order to maximise mutual benefits for our nation, while promoting a sustainable digital economy.
Additionally, the Code of Practice sets out procedures to safeguard the security and welfare of Nigerians while interacting on these Platforms. It aims to demand accountability from Online Platforms regarding unlawful and harmful contents on their Platforms. Furthermore, it establishes a robust framework for collaborative efforts to protect Nigerians against online harms, such as hate speech, cyber-bullying, as well as disinformation and/or misinformation.
Similarly, to ensure compliance with the Code of Practice, NITDA also wishes to notify alI interactive Computer Service Platforms/Internet Intermediaries operating in Nigeria that the federal government has set out conditions for operating in the country. These conditions address issues around legal registration of operations, taxation, and managing prohibited publication in line with Nigerian laws. The conditions are as follows:
One, establish a legal entity i.e., register with Corporate Affairs Commission (CAC); two, appoint a designated country representative to interface with Nigerian authorities; three, abide by all regulatory demands after establishing a legal presence; four, comply with all applicable tax obligations on its operations under Nigerian law;
Five, provide a comprehensive compliance mechanism to avoid publication of prohibited contents and unethical behaviour on their platform; and six, provide information to authorities on harmful accounts, suspected botnets, troll groups, and other coordinated disinformation networks and deleting any information that violates Nigerian law within an agreed time.
If the NITDA code of practice survives then what happens to the lawful interception of communications regulations managed by the NCC? That piece of legislation of January 2019 is clear on its mandate.
PART II of that regulation states interalia: “It shall be lawful for any Authorised Agency listed in regulation 12(1) of these Regulations to intercept any Communication or pursuant to any legislation in force, where—(a) the interception relates to the use of a Communications service provided by a Licensee to persons in Nigeria; or
(b) the interception relates to the use of a Communications Service provided by a Licensee to a person outside Nigeria,
provided that the Licensee shall not be liable in any civil or criminal proceedings for damages, including punitive damages, loss, cost or expenditure suffered “.
Regulations 12(1) states in part:” Pursuant to the provisions of section 148 (1) (c) of the NCC Act, an application for a warrant under these Regulations shall be made to the Judge by any of the following Agencies—(a) The Office of the National Security Adviser represented by the National Security Adviser or his designee, who shall not be below the equivalent of an Assistant Commissioner of Police; and (b) The State Security Services represented by the Director or his designee, who shall not be below the equivalent of an Assistant Commissioner of Police.
(2) Where a Warrant is required pursuant to any international mutual assistance agreement of which Nigeria is a party, the application for a warrant shall be made through the Attorney-General of the Federation, provided that the applicant shows evidence of authority from the relevant country”.
But in the first major reaction to this NITDA code, Media Rights Agenda (MRA) has called on the federal government to discontinue its attempt to adopt a “Code of Practice for Interactive Computer Service Platforms/Internet Intermediaries”, accusing it (government) of trying to regulate social media and other online platforms through the backdoor by circumventing the legislative process.
MRA described the draft Code of Practice developed by the National Information Technology Development Agency (NITDA) and published for public comments as a clumsy attempt to usurp the powers, functions and authority of the National Assembly as well as a breach of the constitutional rights of Nigerians.
Condemning the effort, Mr Ayode Longe, MRA’s Programme Director said: “The federal government is clearly attempting to circumvent the legislative process in favour of a backdoor approach to regulate social media and other internet platforms.
It is indeed curious that the government has chosen to use an administrative document to surreptitiously create criminal offences as the document states unequivocally that any platform or internet intermediary responsible for violating its provisions will be liable to prosecution and conviction.”
Longe thinks that NITDA’s misuse of the term “Code of Practice” to describe the document amounts to acting under false pretenses to mislead Nigerians into believing that the government is seeking to protect them when its real intention is so obviously to control social media and other Internet platforms by compelling them to register with the government and thereby muzzle the right to freedom of expression online.
Longe thinks that the document is a breach of Articles 19 of the Universal Declaration of Human Rights (UDHR) and Nigeria’s treaty obligations under the International Covenant on Civil and Political Rights (ICCPR), which gives everyone the right to freedom of expression, including the “freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers…”
According to him, “the name is problematic. Although it is termed a code of practice, it is in fact not intended to provide guidance for the implementation of any specific law or regulation. Rather, it creates criminal offences which are not contained in any existing Law and attempts to legitimize them by a vague reference to its enabling Act and other laws, which is beyond the remit of any such administrative document.”
MRA frowns that the underlying rationale for many of the provisions of the document are unrealistic and unreasonable as they defy logic and common sense.
He said: “In today’s globalized world, is it possible or realistic to expect global Internet platforms like Facebook, Twitter and others to register with the government of every country in the world where they have users and set up offices in all those countries, which is the implication of the federal government’s demand? Conversely, Nigeria’s external broadcaster, the Voice of Nigeria, broadcasts its signal and content to dozens of countries around the world and runs a website that is accessible globally; is it registered and does it have offices in all the countries where its signals are received as Nigeria is now demanding of platforms registered in other countries?”
In rejecting the “Code of Practice” in its totality, MRA called on the government to abandon it and approach the National Assembly with an appropriate bill, “if its genuine intention is to address legitimate issues rather than violating the rights of Nigerians and other members of the public on the pretext of protecting them from fake news and misinformation.”
When he launched the sixth national broadcasting code in Lagos, on August 4,2020, despite industry-wide opposition Mohammed had said the code was “signed, sealed and delivered”.
The code was seen as an agenda-driven, document since industry players were not carried along because government concluded it. Strangely too, the NBC was said not to be privy to the final document.
There have also been several attempts to tinker with the laws establishing the NBC and the Nigeria Press Council (NPC) by the House of Representatives but public outrage made them to stay actions on them.
Media stakeholders and Civil Society Organizations (CSOs) have resisted amendments to the NBC code by the Muhammadu Buhari administration.
Describing such amendments that seek to give NBC the power to regulate content on social and online media in Nigeria, including licencing them as anathema.
Lai Mohammed now has a very strong ally in Communication and Digital Economy Minister, Dr.Isa Pantami in the quest for censorship of the media through the NITDA code as the minister boasted in October 2020, that until social media is regulated, it will destroy the country.
Aragba-Akpore is a member of THISDAY Editorial Board
