Nigeria v Twitter: Who blinks first?




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Nigeria v Twitter: Who blinks first?
June 15, 2021
Nigeria v Twitter: Who blinks first?
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In what seems a re-evaluation of its suspension of Twitter, the Nigerian Government has set conditions that the microblogging platform and related outfits must meet to continue their operations in the country. In this report by ERIC IKHILAE, law experts argue that most of the conditions may be difficult to meet.

The Federal government on June 4, announced the indefinite suspension of the operations of microblogging platform – Twitter. The suspension, made public by Minister of Information and Culture, Lai Mohammed, came two days after Twitter took down President Muhammadu Buhari’s tweet, claiming it violated its rules by referring to the last civil war in the country.

In explaining the rationale for the suspension, Mohammed brushed aside claims that it was retaliation for Twitter taking down Buhari’s tweet. He accused Twitter of working with enemies to undermine the country.

Reason for suspension

The government explained that Twitter was suspended because it yielded its platform to elements that were bent on threatening the country’s existence.

“I want to repeat that it is because Twitter has consistently made its platform available to those who are threatening Nigeria’s corporate existence; that is the reason for suspending their operations in Nigeria,” Mohammed said.

He accused Twitter of bias, adding that it refused to censor tweets inimical to the nation’s interests, citing those by the leader of the proscribed Indigenous People of Biafra (IPOB), Nnamdi Kanu, who, according to him, consistently incited violence against law enforcement agencies from abroad.

Mohammed added: “We have found out that Twitter is actually the platform of choice for a particular separatist leader, who resides outside the country and issues directives to its members to attack symbols of government authority, such as the police, the military, the electoral commission offices, correctional centres, etc. And this is being done wilfully and consistently without any consequences from Twitter.

“No country worth its name will tolerate that, and no , no matter its self-importance, will force any nation to accept this.”

He further accused Twitter’s CEO, Jack Dorsey, of funding October’s #EndSARS protests.

“I said Twitter funded the #EndSARS protests in Nigeria last year and people have challenged it. Twitter played a prominent role in helping to raise funds for the #EndSARS protesters. Whether they paid directly, helped to pay or helped to raise funds, it’s a matter of semantics.

“So, whether donating money himself or helping to raise money, the Twitter owner is one of those who helped to fund the #EndSARS protests that were later hijacked leading to loss of lives and massive destruction of property.”

Conditions for lifting suspension

Days after the suspension and, perhaps, because of the avalanche of criticism it attracted, the government changed its mind from an indefinite suspension to a conditional one, insisting that Twitter must meet certain conditions to re-enter the country. The conditions include registration as a business entity and payment of taxes.

According to Mohammed most of the Over The (OTT) and social media platforms, operating in the country do not have any offices here and do not pay taxes to the government from “the billions” they earn here.

“That is not the best practice globally, and that is why we are insisting that for you to operate in Nigeria you must first be a Nigerian company and be licensed by the broadcasting commission. Therefore, any OTT or social media platform operating in Nigeria must do so legally,” he said.

He stated that the National Broadcasting Commission (NBC) had, accordingly, been directed to immediately commence the process of licensing all OTT and social media platforms operating in the country, adding that the first step was for them to register with the Corporate Affairs Commission (CAC) and thereafter be licensed by the NBC and then adhere to the conditions stipulated in their licences.

“We have already advertised the notice to the companies concerned to apply for registration of licence. The cardinal thing is that Twitter must be registered in Nigeria. Twitter must be licensed in Nigeria and Twitter must stop using its platform for activities that are inimical to the growth of Nigeria and its corporate existence.”

Mohammed said should the various social media platforms be registered and licensed, their operations would be regulated within the terms of their registrations, noting that “Singapore regulates social media, Australia has done so. Even the European Union that does not have any particular laws on social media has made recommendations in a white paper. The EU says if social media platforms publish contents that are harmful to the security of a nation, such contents should be removed.”

Criticisms

The government’s decision has continued to attract varied reactions with many faulting the suspension and the request for registration as a condition for re-entering the country. From rights advocacy groups to law experts, the argument is that the ban amounted to an extension of the government’s growing intolerance of opposing views. They described it as an attempt to trample on the constitutionally guaranteed rights to of speech, expression and to hold opinions.

The United States (US), the (UK), the European Union (EU) and other countries have also voiced their objection to the suspension, while local groups, including the Nigerian Bar Association (NBA), have also spoken in similar vein and demanded a reversal of the decision.

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In his reaction to the suspension, NBA President Olumide Akpata argued that the government lacked constitutional authority to back its decision, noting that if the suspension was not reversed, the NBA would consider instituting a legal action to protect the nation’s democracy.

Senior Advocates of Nigeria (SANs) Mike Ozekhome, Louis Alozie and Ebun-Olu Adegboruwa, and other lawyers like Daniel Makolo and Tunde Falola spoke in similar vein and called for a reversal of the suspension.

Ozekhome urged Nigerians to resist the government’s decision, using all available legal and judicial means, adding: “We are not in a military dictatorship. We are supposed to be practising constitutional democracy, where government’s actions are circumscribed by and subjected to the rule of law, and not to sheer might and arbitrary, whimsical and capricious rule of the thumb.”

Alozie, who argued that the suspension was in bad faith, noted Twitter had been operating in Nigeria for some time now to the knowledge of everybody, including the President and his ministers, including the Attorney-General of the Federation, who claimed to have directed the prosecution of users of Twitter after government’s suspension.

“They have indeed been patronising Twitter without questions as to the legality of its operations. To have just remembered that its operations are illegal only after Twitter deleted a hate speech and threat of genocide against a ethnic group in Nigeria, calls to question the motive for such request for registration. It is vindictive and an attempt to gag the media outfit.

“To that extent, it is wrong and in utter bad faith. The harassment of Twitter or stopping them from their online publication in Nigeria is an infringement of the rights, not only of Twitter, but the Nigerian public, to freedom of information.

“Citizens and residents in Nigeria, including non-citizens, are entitled to fundamental rights to freedom of information, that is, the right to receive and impart ideas and information. To stop the operation of Twitter is an infringement of that right which is actionable,” Alozie said.

Adegboruwa, while faulting the suspension, noted that such a decision placed the country in the category of nations like China, North Korea and other totalitarian regimes that have the infamous record of banning, suspending or hindering social media.

He expressed concern that, by its body language in recent times, the government could extend such punitive measures to other platforms like the Facebook, Linkedin, Instagram, WhatsApp, Google, Yahoo or even the entire World Wide Web and could even graduate dangerously to the print and electronic media, ultimately.

Adegboruwa argued that, before now, the government had always been very uncomfortable with the freedom enjoyed by the press, noting that earlier this year, the Minister of Information spoke about the resolve of the government to regulate social media, with the attendant threats of sanctions for defaulters.

“He (the Minister) revealed that the President had approved the recommendations of a five-man review committee, set up to examine the existing National Broadcasting Code, which came up with several far-reaching recommendations, including suspension or withdrawal of broadcasting licence, outrageous sums to be imposed as fines, and criminal prosecution, etc.

“My take on all these is that both parties should have exercised some restraint in the actions that they have taken. Twitter being a private organisation that the President willingly subscribed to, he is bound by the rules set up by the owners of the business and should not deploy his official position in of a personal grievance,” Adegboruwa said.

On their part, Abuja-based lawyers – Makolo and Falola – were outright in arguing that the suspension violated some of the rights granted Nigerian citizens under the Constitution.

Makolo noted that the effect of the suspension “is on Nigerian citizens’ right to freedom of expression. The federal government cannot remove the citizens’ rights to freedom of expression without justification. In this case, the federal government is on the wrong side of the law against her citizens, more than Twitter as government’s propagandists want us to believe.”

Falola argued that government’s decision to impose restrictions on the activities of Twitter in Nigeria, under the guise of registration and regulation, was a clear attempt to interfere with citizens right to freedom of expression and to hold opinions as guaranteed by 39 (1) of the Constitution.

He added that although every right is not absolute, the only exception is as guaranteed by Section 45 of the same Constitution only to extent that a law can be made to curtail such rights in interest of public safety and protection of other peoples’ rights. The question therefore is, is there any law in Nigeria as of today that forbids the use of Twitter? The answer is no.

“If the Government feels strongly that some elements are using the platform to create tension, manipulate or propagate a false and misleading story, the opinions open to is to activate the provisions of other existing laws in bringing the culprits to book rather than interfering with citizens’ right to freedom of speech as guaranteed by the nation Constitution in the name of registration

Falola noted that the court, in the case of Din V African Newspaper of Nigeria Ltd. (1999) LPELR 947 SC, held that the freedom guaranteed under Section 39 of the Constitution, includes the freedom to hold an opinion and pass information without interference and that this freedom presupposes free flow of opinion and ideas essential to sustain the collective life of the citizenry.

He added: “Even though the court emphasised that the exception to this right, to the extent that, no law that is reasonably made for the purpose of public peace and protection of other rights will be invalidated for the purpose of this Section, the circumstances of the Twitter ban by the government and its insistence on compulsory registration, are not justified and do not fall under this exception.

“If the federal government feels threatened by activities of unscrupulous elements using Twitter as a platform, part of the existing laws it can invoke is Section 24 (1) of the Cyber Crime Act 2015 which prohibits and provides punishment for spreading false information, which tends to injure or for the purposes of causing annoyance, insult or inconvenience and danger by means of computer systems rather than banning or restricting free flow of information in the name of asking Twitter to register.”

Court actions

While the NBA and the Chairman of its Section of Public Interest and Development Law, Dr Monday Ubani have threatened to sue and assured of the readiness to defend anyone charged with using Twitter after the suspension, some groups led by the Socio-Economic Rights and Accountability Project (SERAP) and a lawyer, Malcom Omirhobo have since sued at the ECOWAS Court.

In the suit, marked: ECW/CCJ/APP/23/21 by SERAP and 176 concerned Nigerians, the plaintiffs frowned at what they described as “the unlawful suspension of Twitter in Nigeria, criminalisation of Nigerians and other people using Twitter, and the escalating repression of human rights, particularly the rights to freedom of expression, access to information, and media freedom in the country.”

They are seeking, among others, an order declaring the suspension as unlawful and a violation of citizens’ rights. In the interim, they want the court to issue an order of interim injunction restraining the federal government from implementing its suspension of Twitter in Nigeria, and subjecting anyone including media houses, broadcast stations using Twitter in Nigeria, to harass, intimidate, arrest and prosecute, pending the hearing and determination of the substantive suit.

Their lawyer, Femi Falana (SAN) argued that if this application for interim injunction was not urgently granted, the government would “continue to arbitrarily suspend Twitter and threaten to impose criminal and other sanctions on Nigerians, telecommunication companies, media houses, broadcast stations and other people using Twitter in Nigeria, and the perpetual order sought in this suit might be rendered nugatory.”

In his suit, Omirhobo is contending among others, that by the suspension order, the Federal Government had denied him access to his Twitter account and has thus, violated his “rights to freedom of association, speech and expression.”

Government’s counter argument

The government has since hit back at critics, arguing that its action was justified, in that it was intended to protect that nation’s security. It denied violating citizens’ rights as claimed. Minister of Information and Culture particularly came down hard on foreign nations and institutions, calling them hypocrites, arguing that their views were actuated purely by economic reasons and not because they love Nigeria.

Mohammed, who wondered why Nigeria was being accused of stifling free speech, noted that both the EU and the UK were already working on social media regulations. He urged Nigerians to distinguish between countries that are trying to protect their economic and commercial interests from those countries that genuinely love the country and talking about freedom of speech.

“Don’t forget for one minute that it is because there is a country called Nigeria that there is freedom of speech… Many of the commentators have said suspending the operation of Twitter is like stifling freedom of expression. And I said no.

“Twitter is just one of the many platforms through which Nigerians can express themselves. There is Facebook, there is Instagram, there’s WhatsApp. There’s Google Hangout and others. They have not been suspended,” he said.

Why conditions may be unfeasible

While Ozekhome, Alozie Sani, Makolo and Falola were not averse to government’s insistence on the payment of taxes, they argued that Twitter and related platforms do not qualify as organisations that could be compelled to register in Nigeria before doing business.

Ozekhome was of the view that “there is nothing wrong with telling Twitter to pay tax as a going business concern. But telling it to register with the Corporate Affairs Commission (CAC) is a step away from total regulation and control of social media, a pet project of this clueless anti-people government.”

Alozie noted that under the nation’s law, no foreign company could lawfully do business in Nigeria without being registered under the Companies and Allied Matters Act (CAMA). He added that such a company, when registered bears “Nigeria Limited,” as if it is a Nigerian company.

“It is then liable to the laws of Nigeria, including taxation. However, it is doubtful if this social media outfits operating online publications are subject to such laws. Where a company is registered, it would have a registered office, directors or trustees with known addresses.”

Sani argued that no law exists in the country that can compel the registration of Twitter and the likes, which do not operate their broadcast equipment from anywhere in Nigeria. He noted that, unlike what obtains in the US, where the Code of Federal Regulations, Title 47, Part 97 defines “broadcasting” as “transmissions intended for reception by the general public, either direct or relayed,’ the Nigerian laws, particularly the NBC Act, is completely silent on what “broadcasting” means.

He added: “No doubt, this would have served as a guide on the scope of the NBC Act and whether it avails the government in its demand that the platforms register with the commission. Needless to say, the NBC Broadcasting Code, (amended in 2020) cannot make much of a difference, as it cannot be stronger than the principal statute.

“Even leaving aside the arguments about freedom of expression under the Constitution (which, at any rate, is not absolute, given the provisions of Section 45 of the same Constitution), it is hard to see how the government can legitimately rely on the NBC Act to control Messrs. Twitter & Co.- without amending it, that is, the Act.”

Makolo also contended that there is no extant law in country’s statute books that supports the government’s position that makes it mandatory for Twitter and the likes to register their business in Nigeria.

He added: “The Twitter business is such that takes place in the sky, using the airwaves. You cannot regulate them in the real sense of it. Telling or forcing your citizens not to patronise Twitter is your business. It does not affect Twitter’s businesses worldwide as it continues to do her businesses, earn its derivatives and smiling to the bank.

“Twitter is at liberty to register its business in Nigeria or not to do so. After all, Twitter has been doing business in Nigeria, like in many other countries, without any registration or office space and has been doing very well. The government’s control mechanism cannot affect Twitter, except with Twitter’s submission.”

Falola noted that under the company’s registration procedures as laid down by Nigerian laws, before an entity could be regarded as a company properly so called and before it can qualify for registration and carry out business in the country, such entity must meet certain distinct conditions – have a business object, have a business or registered address, and possesses proposed directors, Memorandum and Article of Association, among others.

He added: “The question is, does Twitter operate any business in Nigeria for the purpose of mandating it to come and register under the Nigerian laws, the answer, in my opinion, is no, for the following reasons:

“Twitter is just a mere platform of expression in Nigeria in accordance with the provisions of Section 39 of the 1999 Constitution, even though some Nigerians – corporate and individuals – may be in the habit of using the platform to advertise their products. This alone does not suggest the media platform is carrying out business activities.

“Twitter does not advertise any product other than allowing people, who so wish, to download the application and use it as a means of expression, free flow of options and ideas. It is Nigerians, and like any other citizens all over the world, that download the Twitter application. So, it is a free-will and the citizens have the right to either download or ignore the platform

“Twitter has no specific business object unlike the regular companies, upon which it has to register as required by the government. The government’s insistence on its registration is akin to all governments of the various countries of the world asking Twitter to come and register.

“Although the application, by its very nature, may be a company; its activities in Nigeria do not make it a foreign company practising or carrying out business in Nigeria for the purpose of registration. And, also, even though Twitter, by itself is a company under the law of the United States, its operations in Nigeria do not suggest it is carrying on business for the purpose of mandating it to come and register,” Falola argued.

The way out

As a way of resolving the crisis ignited by the suspension, Adegboruwa urged the President to direct the reinstatement of Twitter in Nigeria whilst Twitter should take a second look at its policies and rules to give room for engagement when perceived violations occur.

“On the other hand, Twitter should learn to give room for first offenders, by creating the template for warnings and such other sanctions that would not lead to outright punishment. It is the first time that the President has had this challenge and he should have been given an opportunity to remedy the alleged breach of the rules of engagement.

“Indeed, there have been very positive sides to social media, especially in aiding criminal investigations, in gathering intelligence and in tracking criminals and their sponsors. If we proceed on account of individual biases to block the channels that these platforms provide, we may end up cutting our nose to spite our face. Suspending Twitter on this occasion is definitely overkill,” Adegboruwa said.

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