A Commentary On The Frivolous Anti-Social Media Bill - By Chisanya Attamah

 

The Bill which may be cited as the Frivolous Petitions (Prohibition, etc) Bill 2015 has also been termed the 'anti-social media Bill' by many. It is a four section, two-page short but overreaching Bill which some may argue offends the last bone of democracy and should be unheard of in this age. 

 

The first and second readings were done on 24 November and 2 December 2015 respectively and it is now at the committee stage.

 

Section 1 of the Bill makes it unlawful to submit any petition or statement intended to report the conduct of any person for the purpose of investigation, inquiry or inquest without an affidavit sworn at a State or Federal High Court confirming the veracity of the statement. Section 2 prohibits the government and its agencies from relying on any unsworn petition.

 

Section 3(1) criminalises the publishing of any petition and/or complaint not supported by a sworn affidavit and stipulates a mandatory 6 months imprisonment. Section 3(2) penalises anyone who acts on, uses or causes such petition or complaint to be used with 2 years imprisonment or a fine of N200,000. Section 3(3) prescribes 2 years prison sentence or a N4 million fine for the making of allegations or publishing statement in any paper, radio or any medium whatsoever in attempt to circumvent the Bill, should it become law; with malicious intent to discredit any person, group or government institutions. The section 3(3) offence requires the mens rea of malicious intent.

 

Section 4 penalizes a person for posting knowingly false abusive statement by text message, tweets, WhatsApp or through any social media; with intent to set the public against any person, group, government institution or body and stipulates 2 years imprisonment and/or a fine of N2million. Again, this section requires proof of intent before one can be convicted of an offence.

 

The first question that readily comes to mind is: is this bill necessary and/or useful? It is difficult to find a positive response to that question because there are extant laws both civil and criminal under which an aggrieved person can seek justice and remedies for offensive and/or false statements. Some good examples of these are the Cyber Crimes (Prohibition, Prevention etc) Act 2015 (the “Cyber Crimes Act”), the Criminal Code Act 1990, the Penal Code and the tort of defamation.

 

Under section 24(1) of the Cyber Crimes Act, any person who knowingly/intentionally sends or causes to be sent a message or other matter by means of computer systems or network that is grossly offensive inter alia for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, ill will or needless anxiety commits an offence and upon conviction is liable to a maximum fine of N7 million and/or not more than 3 years imprisonment. 

 

Where the message sent by computer or network is intended to bully, threaten or harass another person inter alia where such communication places another person in fear of death, violence or bodily harm; the sender or one who causes it to be sent will be liable to 10 years imprisonment and/or a minimum fine of N25 million: see section 24(2)(a) of same. The Act is quite wide and forbids the distribution of racist and xenophobic material to the public through a computer system or network, the use of threats of violence and insulting statements to persons based on race, religion, colour, descent or national or ethnic origin; also punishable by fine and/or imprisonment.

 

In addition, the publication of defamatory statement is a criminal offence under the Criminal Code sections 370-381 and the Penal Code Act sections 391-395 respectively.

 

With respect to the drafting, the Bill does not define the parameters for interpreting certain provisions. It is ambiguous and leaves some questions unanswered or perhaps for the determination of courts. For example: it is not clear what is meant by “false abusive statement”. Further, it is also not clear how the requirement of “intention to set the public against a person” will be established and worse still, what constitutes malicious intention to discredit. 

 

The Bill does not also state what the test for determining either of them is – i.e. whether subjective or objective test would be applied. The Bill is silent on what court has jurisdiction over matters arising from its breach and fails to address personal and territorial jurisdiction on the internet.

 

If this Bill is passed into law, it is likely to have some negative impacts, four of which I shall highlight. First and most importantly, it will result in breaches of constitutional rights. This Bill regulates what people choose to do in their privacy and takes away the freedom of speech. Section 37 of the Constitution of the Federal Republic of Nigeria (the “Constitution”) provides that: “The privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected.” 

 

Text messages are more often than not personal and it is worrying to think that one can become a criminal or be liable to pay a huge fine as a result of a personal text message sent in confidence or a statement published on social media whether to friends, family or otherwise.

 

Section 39 (1) of the Constitution provides that: “Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.” While it is undisputed that the exercise of a person’s right to freedom of speech may result in the invasion of another’s rights to privacy thus culminating in a conflict of fundamental rights, the proposed law should seek to achieve a balance between the conflicting rights! 

 

To provide solution to such conflicts, section 45(1) of the Constitution makes provision for laws that derogate from fundamental rights where it is reasonably justifiable in a democratic society in the interest of defence, public safety, order, morality or health or for the purpose of protecting the rights and freedom of other persons. However, it appears that the need for a balance of rights was not put into perspective in the course of the drafting exercise. The Bill appears extreme and tilted in favour of the makers and such derogation is not reasonably justifiable under the stated exceptions.

 

Second, the import of this Bill is that a complainant must make a statement on oath, failure upon which the complaint cannot be investigated. Consequently, it will expose a complainant who wishes to remain anonymous for security reasons or otherwise and discourage whistle-blowing where there are illegal or dishonest activities. 

 

Third, the requirement of a sworn statement defeats the primary purpose of investigation, which includes collecting evidence and gathering sufficient information to determine whether one should be prosecuted. Why should government agencies be stopped from investigating or making inquiry without a sworn statement?!

 

Fourth, it is too wide and far-reaching. Statements made in the course of daily lives whether by text messages or other social media platforms can lead to imprisonment, given that one could be liable for both imprisonment and fine. Moreover it penalizes not only the maker of the statement but also one who uses or causes it to be used.

 

In conclusion, it appears that much thought was not given to public interest and enforceability issues. It is undoubted that criminal law exists to protect society, punish offenders and deter commission of crime but it must indeed be reasonable and for the common good. In any event, should this Bill be passed into law, it will be interesting to see how it will be enforced against the possible numerous offenders that may be caught by its extensiveness. 

 

Notwithstanding that the psychological effect, i.e. the fear of being prosecuted for exercise one’s right to free-speech, may suffice as a deterrent in itself; there will be stringent difficulties in enforcing it and it may encourage the making of scape-goats out of some people just to send a message across to the populace. The President has released a statement that it will not assent to any legislation that is unconstitutional but it remains to be seen whether the President will assent to this Bill if it is passed. 

 

Perhaps more attention should be dedicated to reviewing the legal system which is replete with obsolete laws, in order to accommodate recent changes and create more valuable statutes.

Chisanya Attamah is an Associate at Fidelis Oditah & Co., a world class Nigerian legal services provider. Her practice areas are Dispute Resolution, Energy & Infrastructure, Corporate/Commercial, Insolvency and Intellectual Property law.