Twitter Ban: Some Key Policy and Legal Considerations for Web Platforms

Twitter Ban: Some Key Policy and Legal Considerations for Web Platforms

 

Twitter Ban: Some Key Policy and Legal Considerations for Web Platforms


 

By Olubunmi Abayomi-Olukunle, the Lead Transactions Counsel at Balogun Harold 

Key Takeaways

  • There is generally no statutory protection from civil liability for social media companies regarding third-party content.
  • Nigeria needs to enact regulations, similar to sector 230, to protect web platforms from third-party “publisher” liabilities.
  • A plain-vanilla Nigerian subsidiary, at this time, leaves room for more exposure.
  • New laws in Nigeria should inform a review and update to Africa strategy.

The decision of the Nigerian Government to suspend Twitter in Nigeria, has implications for not just social media companies but also for all internet and technology companies with Nigerian subscribers. The suspension of Twitter in Nigeria also brings into sharp focus some key differences between how Nigeria regulates and protects, technology companies on the one hand, and the convergence of global regulatory trends around the regulation of social media companies, on the other hand.

Although, the Nigerian Government seeks to be heard and understood in relation to broader public interest concerns, the Government also needs to protect internet companies, internet freedoms and the economy of the internet.

Here are some of key considerations:

 

1. Liability as Publishers

Nigeria has no legal or regulatory construct similar to Section 230 (c) (1) & (2)[1]. The implication is that, providers of interactive computer services (“Platforms”) will likely be treated by Nigerian courts as “publishers”. Platforms can also be held fully liable for third-party/user-generated content posted on their platforms.

2. Liability for Censorship Decisions

Platforms can be liable to users for the censorship decisions that they make because First Amendment rights (typically referred to as “Fundamental Human Rights/FHR” in Nigeria) are enforceable against private citizens under Nigerian law. This is a significant departure from a fairly-settled line of U.S. cases. U.S courts have established the principle that private citizens and companies, not being state actors, are not generally subject to judicial scrutiny under the First Amendment, so far as such private entities are not exercising a state right, privilege or authority.

In a recent case against Twitter[2], the Plaintiff sued Twitter Inc. for violating her civil rights on account of Twitter’s decision to shut down @realdonaldtrump’s account. The Plaintiff argued that she has (i) a First Amendment right, to view, comment, retweet, quote, and to “like” the former president’s tweets and (ii) a Fourteenth Amendment right, to due process before her ability to comment was arbitrarily removed by Twitter. The Plaintiff lost this action on account of this principle.

3. One Adverse Precedent

If the array of local non-profits threatening to litigate the suspension of Twitter succeeds[3] in convincing a Nigerian court to upturn the suspension of Twitter, on the basis that the Suspension violates fundamental human rights of free speech, that decision will very likely be, an adverse precedent for Platforms, as the decision will create a reliable precedent for private persons to file a similar human rights violation action against Platforms for censoring third-party content, which are determined to be in violation of a Platform’s content moderation policies. As earlier noted, “First Amendment” rights are enforceable against private entities as well as state actors under Nigerian law.

4. NBC’s Approach to Regulation

In the wake of the suspension of Twitter, the Nigerian Government directed its broadcast regulator, the National Broadcasting Commission (the “NBC”[4]) to regulate Platforms. This directive has serious implications for the business of Platforms in Nigeria because, as a matter of orientation, the NBC typically regulates its licensees primarily on the basis of the civil liability of Broadcasters. With this regulatory approach, Platforms are generally exposed to the widest range of civil liability available under Nigerian laws.

Also, the NBC regulates Broadcasters on the basis of an expansive content moderation policy contained in a newly-updated Broadcasting Code (the “Code”). The provisions of the Code may conflict with some of Twitter’s policies on certain issues. For instance, Broadcasters are prohibited from broadcasting sex-related acts “such as adultery, rape, bestiality, homosexuality, incest and the LGBT issues”. The Code allows the broadcast of LGBT themes only as “destructive practices to be avoided and denounced”.

In particular, Section 3.8.1(b) of the Code prohibits broadcasters from broadcasting “any language or scene likely to encourage crime, lead to disorder or any content which amounts to subversion of constituted authority or compromises the unity or corporate existence of Nigeria as a sovereign state.” This section appears to be the only legally defensible basis upon which the Nigerian Government can justify the Suspension.

5. The Criminal Jurisdiction of Nigerian Courts

Nigeria does not recognise LBGT rights and there is no legal protection against discrimination against LGBT persons in Nigeria. More importantly, the Same Sex Marriage Prohibition Act (the “SSMP Act”) criminalises all forms of same sex unions and the registration of LGBT clubs or societies; and, any direct or indirect public showing of same-sex relationships. Additionally, persons who make a public show of same-sex relationships, support same-sex marriages, or supports the operation or sustenance of LBGT societies, are liable on conviction to an imprisonment term of 10 years. The SSMP Act is another point of divergence and introduces an additional layer of complexity for Platforms because it essentially subjects Platforms to the criminal jurisdiction of Nigerian courts.

6. National Security & Corporate Existence Considerations

There is a long line of cases where Nigeria’s courts have ruled that “national security” and “corporate existence” interests rank above constitutionally-guaranteed fundamental human rights of Nigerian citizens. This legal position is now fairly-settled case law in Nigeria. In one of those cases the federal Supreme Court held as follows:

“The pronouncement by the court below is that where National Security is threatened or there is the real likelihood of it being threatened, human rights or the individual right of those responsible take second place. Human rights or individual rights must be suspended until the National Security can be protected or well taken care of. This is not anything new. The corporate existence of Nigeria as a united, harmonious, indivisible and indissoluble sovereign nation, is certainly greater than any citizen’s liberty or right. Once the security of this nation is in jeopardy and it survives in pieces rather than in peace, the individual’s liberty or right may not even exist.”

7. New Laws & Regulations Applicable to Platforms

A number of new legal and policy developments in Nigeria will also have an impact on how Platforms identify and manage regulatory risk, going forward. These developments range from amendments to existing law and entirely new laws. For instance, Nigeria’s first digital tax laws, competition laws and data privacy laws were finalised in 2019. There are also key considerations within the context of local capital control and content moderation regulations, elections regulations and foreign company regulations.

Overall, it’s a delicate balance that the Nigerian government now has to achieve and the local “tech” industry ought to provide informed leadership and direction for the government on this one as Nigeria needs to enact regulations, similar to sector 230, to protect Platforms from third-party “publisher” liabilities.

Footnotes

[1] Per United States, Communications Decency Act. The section allows web platforms to operate without liability for third-party content posted on their platforms and to censor third party content, without civil liability.

[2] 4:21-cv-00548-YGR (N.D. Cal. Jan. 28, 2021). See also Perez vs LinkedIn, Divino vs Google, PragerU vs Youtube, Wilson vs Twitter, Manhattan Community Access vs Halleck, Murphy vs Twitter, Coffee vs Google, Federal Agency of News vs Facebook.

[3] In our view, any such action has very little merit and little chance of success, given the direction of decided cases on national security issues and the derogations allowable under the Nigerian constitution.

[4] Nigeria’s broadcast regulator primarily regulates radio, cable and television broadcast rights and is distinct from Nigeria’s communications regulator.