Nigeria

No. The Draft Code of Practice defines disinformation as “verifiably false or misleading information that, cumulatively, is created, presented, and disseminated for economic gain or to deceive the public intentionally and that may cause public harm.” It defines misinformation as “the unintentional dissemination of false information”. Part II requires platforms to inform their users through the terms of service not disseminate information that is false or misleading, and Part V requires platforms to take certain measures to address dis- and misinformation, including: 

• Taking “adequate measures” to restrict dis- or misinformation and where necessary to provide corrections or alternative sources; 
• Remove dis- and misinformation “as soon as reasonably practicable” where the information is likely to cause violence, public disorder, or exploitation of a child
• Trace, expose, penalise, and close accounts and sources that amplify disinformation and misinformation.

It is not clear how to determine whether a message is “false” or “verifiably false or misleading”, nor the scope of what is considered to be an intention to deceive the public or cause public harm or what information would be considered likely to cause violence, public disorder or exploitation of a child.

No. Speech should only be restricted where some clear, objective harm might be caused. Platforms are explicitly required in Part V to remove dis- and misinformation where the information is likely to cause violence, public disorder or exploitation of a child, which may constitute legitimate aims. However, other Part V also requires platforms to take adequate measures to restrict dis- and misinformation and to penalise and close accounts that amplify such content, and as such Part V also requires platforms to restrict speech or content which, while false, may not pose any objective harm. Furthermore, under Part IV platforms are also required to remove content which is prohibited under the 2015 Cyber Crimes prevention act, which includes restrictions on sharing false information without legitimate aims (see analysis above). 

Potentially. The regulations differentiate between misinformation – defined as the unintentional sharing of false information – and disinformation, which is false information designed to deceive the public. Under Part V, individuals are not held liable, without intent, if they merely reshare content and do not modify or author it. But platforms are required to address and sometimes remove both dis- and misinformation, meaning that speech could be restricted even where an individual reasonably believed the information to be true.

No. The Code of Practice requires internet intermediaries to decide what speech or content is disinformation. It also requires platforms to act upon complaints or orders made by Government Agencies, such as the National Information Technology Development Agency (NITDA).

Unclear. The Regulations state that platforms and internet intermediaries are subject to “disciplinary measures under civil service rules, prosecution and conviction for violation of NITDA Act 2007” if they violate the terms of the Code of Practice. The NITDA Act 2007 imposes a fine of N 200,000.00 and/or imprisonment of 1 year in the case for first offences under the act by “anybody corporate of person”, or a fine of N 500,000.00 and/or imprisonment of 3 years for second and subsequent offences. If the maximum fines or sentences were imposed without taking into account the particular circumstances of the offence or genuine attempts by the platform to limit harm to their users, the penalties are likely to be disproportionate.

Yes. The Code of Practice only exempts platforms from liability for unlawful content where the platform has taken “all reasonable steps to ensure that an unlawful content is taken or stays down.” Platforms must remove prohibited content within 24 hours of notification by a court, government agency or user or face sanctions.

No. Section 59 of the Criminal Code creates a criminal offence of publishing or reproducing “any statement, rumour or report which is likely to cause fear and alarm to the public or to disturb the public peace, knowing or having reason to believe that such statement, rumour or report is false.” It is not clear how to determine whether information is “false” or the scope of what is considered “public peace”. Section 59 therefore does not provide clear guidance for individuals and could give an overly wide degree of discretion to those charged with the enforcement of this law.

Potentially. Speech should only be restricted where some clear, objective public harm might be caused. Restrictions made under Section 59 appear to be aimed at protecting public order and public peace. While this may be legitimate, it is unclear whether “public peace” is synonymous with public order. If the scope of “public peace” is interpreted as broader than “public order”, then restrictions would be illegitimate.

Yes. Section 59(2) provides that it shall be no defence to a charge that one did not know or did not have reason to believe that the statement, rumour or report was false, unless they are able to prove that, prior to publication, “reasonable measures to verify the accuracy of such statement, rumour or report”.

Yes, this is a criminal offence and determinations will be made by a court of law.

No. Violation of Section 59 will result in three years of imprisonment upon conviction. This fixed penalty is disproportionate as it does allow the court to consider the appropriateness of sanctions based on the particular circumstances of the offense. This is particularly relevant in circumstances where no harm took place.

N/A.

No. Section 24(b) of the Act creates a criminal offence of knowingly or intentionally publishing a message online when the individual knows the message “to be false, for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, ill will or needless anxiety to another or causes such a message to be sent”. It is not clear how to determine whether a message is “false” or the scope of what is considered to be “causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, ill will or needless anxiety to another”. Section 24(b) therefore does not provide clear guidance for individuals and risks giving an overly wide degree of discretion to those charged with the enforcement of this law.

N.B. In 2020, the ECOWAS Court determined that Section 24 of the Act violated the right to freedom of expression under regional and international human rights law. While this legislation has not been considered by courts at the national level, the ECOWAS Court has ordered the Nigerian government to either appeal or amend this provision of the law.

No. Speech should only be restricted where some clear, objective public harm might be caused. Restrictions made under Section 24(b) appear to be legitimately aimed at protecting public order and the rights of others. However, restrictions made to prevent annoyance, inconvenience, ill will or needless anxiety to another are unlikely to fall within the scope of these aims and would therefore be illegitimate.

Yes. Section 24(b) prohibits a person from knowingly or intentionally publishing a message online that “he knows to be false”. It may therefore be inferred that an individual would not be convicted when they were unaware of the false nature of a particular message.

Yes. This is a criminal offence and determinations will be decided by a court of law.

No. Violation of Section 24(b) may result in a fine of not more than N7,000,000 (USD 18,000) or imprisonment for a term of exceeding 3 years, or both. These sanctions would be disproportionate if the maximum penalties are imposed without taking into account the circumstances of the offence. This is particularly true for instances where no harm occurred.

N/A.

Unclear. The DSS arrested Ogbonna on suspicion of both cyberterrorism and intentional publication of false and threatening messages through the internet. However, reports indicated that Ogbonna was actually charged under Sections 27(1) (a) and 18(1) of the Cybercrimes (Prohibition, Prevention etc) Act 2015, neither of which refers to false messages. 

No. Restricting speech may be legitimate if made in the pursuance of a legitimate aim, including for respect of the rights or reputations of others, for the protection of national security, public order, public health or morals. In this particular case, however, reports suggest that the law enforcement action was aimed at restricting criticism of the government.

No. The action taken by the government was not in pursuance of a legitimate aim, but rather to restrict criticism. Therefore, any action taken by the government is unnecessary and disproportionate.

Yes. The charges brought against Jalingo include contravention of Section 24(b) of Nigeria’s Cybercrimes (Prohibition, Prevention etc.) Act 2015, which creates a criminal offence of knowingly or intentionally publishing a message online when the individual knows the message “to be false, for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, ill will or needless anxiety to another or causes such a message to be sent”.

Unclear. Speech restrictions may be legitimate if made in the pursuance of public order, public morals, public health, national security, or to protect the rights and reputations of others. If the claims made by Mr Jalingo were false, restrictions may indeed be warranted because of the consequent damage done to Ms Ayade’s reputation. However, Mr Jalingo has previously been arrested by police for sharing stories critical of state politicians, and it may be that the action was taken to deter or prevent political criticism, which would not constitute a legitimate aim. 

No. Even if the story was false, criminal charges and detentions are disproportionate penalties. If the story was true and the motivation for the legal action was illegitimate, it would not be considered necessary or proportionate in any circumstances.

Yes. Luka Binniyat was charged under Section 24(b) of the Cybercrimes (Prohibition, Prevention, etc) Act 2015.

No. Restricting speech may be legitimate if made in the pursuance of a legitimate aim, including for respect of the rights or reputations of others, for the protection of national security, public order, public health or morals. Here, reports suggest that law enforcement action was aimed at restricting criticism of the government and its response to violence in a specific part of the country. 

No. The action taken by the government was not in pursuance of a legitimate aim, but rather to restrict criticism. Therefore, any action taken by the government is unnecessary and disproportionate.

Yes. Onitsha was arrested for allegedly violating Section 24(b) of the 2015 Cybercrime Act which  criminalises “sharing messages via a computer or network system which they know to be false for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, ill will or needless anxiety to another person”.

No. Restricting speech may be legitimate pursuant to a legitimate aim, including for respect of the rights or reputations of others, for the protection of national security, public order, public health or morals. In this particular case, however, Onitsha’s article was not connected to any clear objective public harm, and reports indicate that the action appears to be a clear case of journalist harassment.

No. Any action taken in pursuance of an illegitimate aim would be unnecessary and disproportionate. 

Yes. Rotimi Jolayemi was charged under Section 24(1)(b) of the Cybercrimes (Prohibition, Prevention, etc) Act 2015. The charge sheet noted that Rotimi posted the audio message with “the purpose of causing annoyance, insult, hatred and ill will to the current Hon. Minister of Information and Culture”. An amended charge sheet was produced in June which expanded on the rationale for this charge.

No. Restricting speech may be legitimate if made in the pursuance of a legitimate aim, including for respect of the rights or reputations of others, for the protection of national security, public order, public health or morals. Here, reports and the charge sheets suggest that the poet was not arrested and charged for a legitimate aim. Instead, the action was aimed at restricting criticism of the government.

No. The suspension of Twitter was not based on any law or court order, nor was it clear what law was breached by the company.

No. Speech may only be restricted if it poses some clear, objective public harm. The government claimed that the ban was imposed because misinformation and fake news were spreading through Twitter and inciting offline violence, which implies pursuit of the legitimate aim of protecting the rights and reputations of others and preserving national security and public order. However, it appears more likely that the ban was imposed in order to punish Twitter for restricting President Buhari’s account, which is not a legitimate aim.

No. Even though some content on Twitter may have posed risks to public safety or human rights, blocking the whole platform was a highly disproportionate response. It is possible to address and mitigate the risks of harmful content without blocking the entire platform.

N.B. The ECOWAS Court ruled in July 2022 that the Twitter ban was “unlawful and inconsistent with the country’s international obligations”, in response to a lawsuit brought by four applicants. The Court explicitly stated that the ban had violated Applicants’ rights to the enjoyment of freedom of expression, access to information and the media.