The public outcry over the Nigerian government’s recent decision to indefinitely suspend Twitter continues unabated. While many are looking at the ban as an attack of the public right to information, the government has come out to clarify its decision as the best in the national interest.
The Government has argued that the regulation of social media platforms is a global practice that has not stifled press freedom in sovereign nations like India, Singapore, Algeria, Australia, Pakistan, Turkey which are regulating the social media in their territories.
It is on this score that I personally find the India situation quite relevant while researching for this article. It is called the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 and was released by the Ministry of Electronics and Information Technology in India sometime ago for public consultation.
Official sources say that since the world is in a digital era, with the public heavily dependent on social media for news, entertainment, there is a high risk of it being abused. It is for this reason, that the country came up with stringent rules for any form of communication of information via what it calls intermediaries as well as online news content and Over-The-Top (“OTT”) platforms. The rule came on stream in February 25, 2021.
The Rules, India says are a step, “to protect the rights of the public at large and ensuring justice to all”. It says the rules aim to establish a self-regulatory framework for online intermediaries, social media sites, streaming services, and digital media firms. Interestingly, India had a 2018 rule, which the 2021 modified.
The content of the rules follows.
*Due diligence:
Rules, 2021, discusses the aspect of due diligence that intermediaries must obey. It also clarifies the scope of the safe harbor protections outlined in Section 79 of the Information Technology Act of 2000. Per se the rules, Intermediaries must exercise due diligence such as:
(i) Providing users, the privacy policy, rules and regulations, and terms and conditions for using its services. The policy must provide that the user is prohibited from hosting, displaying, uploading, modifying, publishing, transmitting, storing, updating, or sharing any information that is contrary to societal norms, immoral, defamatory to the general public or misleads the general public.
(ii) Upon a court or government order, blocking access to illegal information within 36 hours.
(iii) The intermediary shall not publish any information that is against the interests, unity, integrity, and sovereignty of the state.
(iv) Within 24 hours of receiving a complaint, the intermediary shall take all appropriate steps to disable access to material that is non-consensual and sexual in nature.
(v) Identification of the First Originator of Information.
(vi) After a user’s registration has been canceled or withdrawn, the information gathered for registration should be stored180 days.
(vii) A grievance Officer to oversee victim complaints must be appointed and his information should be published on the intermediary’s website or application.
(viii) Mandatorily publishing a Monthly Compliance Report containing details of complaints received and action taken thereon.
(ix) As per the rules the intermediaries must appoint Chief Compliance Officer, a Nodal Contact Person, and a Resident Grievance Officer.
(x) Additionally, for social media intermediaries there is an additional proviso for ‘Voluntary User Verification.
(xi) Significant Social Media Intermediary “shall endeavor to deploy” technology-based measures such as automated tools or other frameworks for proactively identifying any information that depicts any act or stimulation, whether explicit or implied with regards to rape, child sexual abuse or conduct and information identical to the content that has been removed/disabled.
*Code of Ethics:
The Code of Ethics under the Rules apply to publishers of digital media including such as news and current affairs content providers and OTT platforms. The 2021 Rules stipulate that news publishers in the digital media must adhere to Norms of Journalistic Conduct and the Cable Television Networks Regulation Act, 1995. For the OTT platforms, the necessary requirements are demarcating content into age-appropriate categories [Universal, U/A 7+, U/A 13+, U/A 16+, and Adult], introducing an age verification system for access to adult content and content accessibility to disabled people. A publisher of news and current affairs material, as well as a publisher of online curated content, are required to notify the Ministry of its entity’s details, as well as provide information and the required documentation to facilitate communication and coordination.
*Grievance Redressal System:
Under Rule 10 a grievance redressal mechanism has been established. It has three levels:
(i) Level 1-Self-regulation by the Publisher: This level entails the grievance redressal mechanism established by the Publisher. Rule 11 provides that an applicable entity must appoint a Grievance Redressal Officer who must resolve the grievance received by it within 15 days. The said officer would also serve as a point of contact for complaints related to the Code of Ethics.
(ii) Level 2- Self Regulatory Mechanism: Rule 12 establishes one or more self-regulatory bodies consisting of publishers.
Thus, this stage is self-regulation by the aforementioned bodies.
These bodies must be registered with the Ministry of Information and Broadcasting. This body will monitor the publisher’s compliance with the Code of Ethics, resolve complaints that have not been settled by the publisher within 15 days, and hear appeals lodged by complainants against the publisher’s decision.
(iii) Level 3 -Oversight Mechanism: There is the formation of Oversight Mechanism, which ensures adherence to the Code of Ethics by the publishers. This mechanism initiates an Inter-Departmental Committee for hearing grievances. The Authorized Officer will lead the committee, which will hear and investigate complaints or grievances received from Level I/ Level II or the ones made to MIB.
*Blocking of Information:
In an emergency, authorized officers may investigate digital media material and the Secretary, MIB, may issue an interim order blocking the use of such content. The final order for blocking will be passed only after the Inter-Departmental Committee gives the approval.
The India Information Technology (Intermediary Guidelines and Digital Media Ethics Code) has been condemned as having gone far beyond anything that is permissible in a democracy and being in contravention to the Fundamental Right of freedom of speech and expression.
It is not known if Nigeria will be coming up with new rules or insisting that affected intermediaries follow existing rules. The government has however, hinted that Twitter and most certainly Facebook, Koo etc, must now register as a Nigerian company, have offices in Nigeria and pay taxes. They are also to obtain licences from the National Broadcasting Commission, (NBC) and must sign agreements as to what contents they could allow on their platforms.
Existing rules are that as foreign companies and to operate in Nigeria, they must register with the Corporate Affairs Commission, (CAC), obtain a Tax Identification Number, (TIN) from the Federal Inland Revenue Service, (FIRS), register for Value Added Tax or VAT, open a Domiciliary Account with a Nigerian commercial bank, register with the Nigerian Investment Promotion Council, obtain a Business permit from the Federal Ministry of Internal Affairs and obtain a license from the Nigerian Broadcasting Commission, NBC.
For the CAC, foreign participation in business in Nigeria require the registration of a company with a minimum of N10, 000,000 authorized share capital. This means the company must have at least 10,000,000 shares divided into 1 Naira per share. However, such a foreign a company is not required to pay up the share capital immediately to the government, but indicates the extent of the promoter’s risks and liabilities to the company.
For the NBC, its code which represents the minimum standard of broadcasting in Nigeria, seeks to provide regulations for
broadcasters and to ensure that broadcasting
played a pivotal role in the social, cultural,
technological, economic, and political lives of
Nigerians. But prior to its recent amendment, this NBC Code did not seem to make adequate
provisions for matters such as broadcasting
online using Nigerian content or the
determination of adequate local content for a
broadcaster in Nigeria.
Further to the
recommendations of a committee on
reforms and consequent
approval of the President, the Commission in 2020
published certain amendments to the NBC. code.The aims of the amendments it says, are to create restrictions for monopolistic behavior in the broadcast
industry, provide for local content in the
broadcast industry and increase advertising
revenue for broadcast stations and content
producers.
The NBC Code also establishes codes of
practice relating to content acquisition,
sharing of content rights for rebroadcasting
and technical standards for media services;
and for the regulation standards of fair market. And for web/online broadcasting the code says, ” All persons who
wish to operate web/online broadcasting
services in the Nigerian territory are now
mandatorily required by the amendment
to the NBC Code to register with the
Commission and conform to the provisions of the NBC Code on programming standards. In addition, a service provider who breaches any
provision of the NBC Code on web/online
broadcasting will be liable to sanctions
including but not limited to a takedown
order, blocking of its channel, or a
shutdown order.
It is obvious from the foregoing that Twitter may not be back, soon in Nigeria though the government has said that the organization is ready for discussions. The above analysis shows that Twitter will be required to begin and make progress before it can be allowed to return to Nigeria. Such an effort will most certainly see the government asking similar organizations to follow suit, which overall, will be in the nation’s best interest.