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REGULATING ONLINE ACTIVITIES NIGERIA TWITTER BAN IN PERSPECTIVE

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Abstract

The importance and deployment of Information Communication and Technology (ICT) in SocioEconomic reforms, in nation building, need not be overemphasized. The effective working of any advanced nation depends on some ICT-based platforms, hence the need for an adequate legal framework governing affairs on these spheres. In Nigeria, for instance, the government has been benefitting immensely from effectively deploying ICT to run its day to day affairs. From the introduction of BVN (Bank Verification Number), the TSA (Single Treasury Account) to the introduction of the NIN (National Identity Number), either for data capturing or revenue mobilization, has been made more effective. Having said that, the negative effects of ICT, in a growing economy like Nigeria, has become worrisome. There is need for the government of the day to live up to its responsibilities by not just churning out laws, but implementable laws devoid of breach on civil liberties. Free speech commands the same rights, both online and offline, but adequate screening and editorial measures, which such rights, hitherto, enjoyed, has been jettisoned leading to a deluge of unguarded, inciting, and inflammatory statements on different online platforms. This work aims at reviewing some legal frameworks, both within and outside Nigeria, and determining the effectiveness of these laws in policing the on-goings in the cyber-space. An analysis will also be conducted by this work, in order for the government of the day to understudy how foreign laws bothering on specific online activities were implemented and using decided cases as a case study, formulating best ways of effectively implementing our local ICT laws while bearing citizen`s civil liberties in mind.
EZEAMA & UMEJIAKU: Regulating Online Activities: Nigeria Twitter Ban in Perspective
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REGULATING ONLINE ACTIVITIES: NIGERIA TWITTER BAN IN PERSPECTIVE*
Abstract
The importance and deployment of Information Communication and Technology (ICT) in Socio-Economic
reforms, in nation building, need not be overemphasized. The effective working of any advanced nation
depends on some ICT-based platforms, hence the need for an adequate legal framework governing affairs
on these spheres. In Nigeria, for instance, the government has been benefitting immensely from effectively
deploying ICT to run its day to day affairs. From the introduction of BVN (Bank Verification Number), the
TSA (Single Treasury Account) to the introduction of the NIN (National Identity Number), either for data
capturing or revenue mobilization, has been made more effective. Having said that, the negative effects of
ICT, in a growing economy like Nigeria, has become worrisome. There is need for the government of the
day to live up to its responsibilities by not just churning out laws, but implementable laws devoid of breach
on civil liberties. Free speech commands the same rights, both online and offline, but adequate screening
and editorial measures, which such rights, hitherto, enjoyed, has been jettisoned leading to a deluge of
unguarded, inciting, and inflammatory statements on different online platforms. This work aims at reviewing
some legal frameworks, both within and outside Nigeria, and determining the effectiveness of these laws in
policing the on-goings in the cyber-space. An analysis will also be conducted by this work, in order for the
government of the day to understudy how foreign laws bothering on specific online activities were
implemented and using decided cases as a case study, formulating best ways of effectively implementing
our local ICT laws while bearing citizen`s civil liberties in mind.
Keywords: Online Defamation, ISP Liability, Electronic Contracts, Wrap Agreements, Fundamental
Human Rights
1. Introduction
For reference purposes, it may be ideal to briefly trace a historical background of the growth of ICT in
Nigeria. Until mid-2001, the Nigerian ICT sector was not robust as the National Telecommunications
Carrier, NITEL, failed in its responsibilities of providing advanced telecommunications equipment to usher
in the growth of internet services trending worldwide as at that time
1
. As part of the government`s
privatization reforms, the telecommunications industry was unbundled, and thereafter, privatized, leading to
an exponential growth and advancement in the nation`s ICT sector. Prior to this privatization, NITEL, being
the government`s sole provider of telecommunications service, was bedevilled with lack of infrastructure,
corruption and obsolete equipment, to mention but a few challenges
2
. As part of the NCC`s mandate to
introduce competition in the telecommunications sector, other players in the industry were granted access
into the market and an aspect of competitiveness was introduced in a sector that was prior to the NCC Act,
a government monopoly
3
. Section 4 of the Nigerian Communications Act, 2004, mandates the Nigerian
Communications Commission to promote fair competition in the communications industry and protection
of communications services and providers from the misuse of market power of anti-competitive and unfair
practices by other service or facilities providers.
4
With huge investments in telecommunications infrastructure by these Telco’s in Nigeria, there has been great
improvement and growth in the ICT sector in Nigeria
5
. In 2011, GLO became the first telecommunication
company to build an S800, 000,000 (Eight Hundred Million Dollar) High Capacity Fibre-Optic cable known
as GLO-1, spanning from the United Kingdom to Nigeria
6
. With such advanced telecommunication
infrastructure and huge investments by these telecommunication companies, there was the dire need to have
*By Chidi EZEAMA, Lecturer in the Faculty of Law, Nnamdi Azikiwe University, Awka, Anambra State, Nigeria. Email:
chidiezeama@gmail.com. Phone: +2348109001356; and
*Nneka Obiamaka UMEJIAKU, PhD, Senior Lecturer and Head, Department of Commercial and Property Law, Faculty of
Law, Nnamdi Azikiwe University, Awka, Nigeria. E-mail: nnekaumejiaku@gmail.com. Tel: +2348033809219
1
F.C Chidozie, L.P Odunayo, A.O Olutosin: ‘Deregulation of the Nigerian Telecommunications Sector: Interrogating the
Nexus Between Imperialism and Development’, Academic Journal of Interdisciplinary Studies Rome Italy Vol. 4 No. 1 (2015)
2
F.C Chidozie, L.P Odunayo, A.O Olutosin, ibid.
3
The Telecommunications Sector was fully deregulated in 2001 by the Nigerian Government and Private sector participation
was introduced in the Industry which hitherto the Deregulation enjoyed Government Monopoly
4
S.4(d) Nigeria Communications Act, 2004
5
Deloitte Nigeria Telecommunications Industry: Looking Back and Looking Forward’ Inside Tax available at
<www.deloitte.com>
6
J. Olaoluwa : ‘Then and Now: Nigeria`s Telecommunications History’; Nairametrics on <www.nairametrics.com> accessed
on Jne 8, 2021 at 5:43am
International Journal of Law and Clinical Legal Education (IJOLACLE) 1 (2020)
Page | 171
adequate legal framework, which will promote healthy competition, fairness and equity in the market and
quality of service to the consumers.
The Telecommunications market in Nigeria, today, can be said to have metamorphosed from a strictly
government-regulated sector, to a semi-self-regulated sector, showing growth and maturity in the market
7
.
Hitherto, major arbitrations handled by the Nigerian Communications Commission were based on dominant
behaviour, exhibited by early entrants into the market.
8
Over the years, the commission, through regulations,
9
had promoted healthy competitive practices in the market.
2. The Role of Telecommunication Companies in Nigeria`s ICT Sector
An article, titled ‘Law on the Wings of Digital,
10
‘ by A&E Law Partnership, classifying the roles of several
players on the internet and their responsibilities, would be relevant in this present discuss on the current
twitter ban in Nigeria and who is to be held accountable for inciting comments on the platform. Behind the
screen of every laptop connected to the internet are many channels, protocols, servers and sites which
disseminate all types of information encoded and decoded. If there is a web of connectivity of activities that
are behind the curtain for messages to be transmitted online, the question arises, would the laws of strict
liability be applied in cases of legal breach in the process or are there specific laws guiding each and every
transaction that occurs online? Some have likened the internet like a big library where people access
knowledge from, others sources, like A&E Law partnership have envisaged the internet to be like a landlord
and tenant relationship where people pay and subscribe for cyber-airtime and are given opportunity by an
Internet Service Provider to sell, market, and advertise, their product or service.
11
To further understand the
above position some major players on the internet will be categorized into some different heads.
1. Network Operators: These are telecommunication companies, like MTN Nigeria, Globacom, whose
role is to provide internet access. As explained earlier, GLO1 cable was a major infrastructure that
improved internet services in Nigeria. Such infrastructure can only be provided by multinational
companies, who invest heavily on infrastructure and make their profits by providing a platform for
other smaller players in the sector
12
.
2. Network Infrastructure Provider: While telecommunication companies invest huge resources in
acquiring infrastructure, there are other companies whose role it is to maintain and service these
items of telecommunication infrastructure
13
. In Nigeria, IHS Ltd., a network infrastructure provider,
in June 2016, acquired from Heilos Towers 1,211 tower sites, or in telecommunications parlance,
base stations, taking full control of all the infrastructure on such sites.
14
3. Internet Access Providers: While Big Multinationals, like GLO, invest in bulk purchase of 3-5G
networks, smaller companies, like Multilink Limited, Smile Communications Limited, buy access
from big multinationals and make their profit through customers subscribing to their networks. The
web created by these business relationships occasions some legal controversies as to who is to be
held responsible should a subscriber slander, for instance, an aggrieved third party user on an
internet access provider`s platform. Some decisions, from advanced jurisdictions, would be
reviewed by this work to clear the air.
4. Internet Service Providers: Companies like Gmail, Yahoo, and Chrome are all classified as Internet
Service Providers on whose platforms subscribers gain access to the internet.
15
5. Social Networks: These are virtual online communities that provide platforms for sharing ideas,
concepts and opinions and give room for interaction. Since these communities envisage high
subscriber traffic, there is need for adequate regulation, as studies have shown that cases of cyber-
bullying, account cloning, hate speeches and racist comments are prevalent on such platforms.
With the above classification, this work will now review some decided English and US authorities on the
tort of Defamation, analysing how the courts determines issues of liability of tortious actions, occurring
7
F.C Chidozie, L.P Odunayo, A.O Olutosin, ibid.
8
NCC Guidelines on Co-Location and Infrastructure Sharing,
9
ibid
10
A&E Law Partnership, ‘Law on the Wings of Digital’ Intermediary Liability of Companies in the Internet’
<www.andelaw.com >accessed on 8th June, 2021.
11
Ibid.
12
ibid
13
ibid
14
HIS Towers Closes the first African Mobile Infrastructure Consolidation Transaction with HTN Towers.
<www.ihstowers.com> accessed on June 8th 2021 at 3:36Pm
15
ibid
EZEAMA & UMEJIAKU: Regulating Online Activities: Nigeria Twitter Ban in Perspective
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online. These decisions would guide the Nigerian courts in ruling on matters bothering on the above topics,
more so now that there is brewing controversy on the ban of twitter in Nigeria and its legal implications.
3. Defamation Categorized Into Libel and Slander under the Nigerian Law of Torts
In simple terms, libel is defamation in a permanent form which occurs most times in written form, while
slander is a malicious verbal statement made against a person in order to malign or undermine the character
of a person, so that a right thinking man in the society would be swayed by such statement. The challenge
of categorizing a verbal, recorded, defamatory statement under the tort of libel or slander has spanned over
the years as an integral element of proving libel, that is, it, being in a permanent form. Questions may arise,
then concerning where to classify more recent technologies, like Whats App voice notes, which falls neither
here nor there, hence the need for legislations on ICT to draw a clear line between what amounts to either
libel or slander, while using a technology device to record a derogatory statement undermining the character
of a person.
Publication, an Integral Element in Proving Defamation
In this era of social media and ICT advancement, the need to underscore the importance of publication of a
defamatory material becomes necessary. However, publication may not be the only criterion for determining
if a statement amounts to defamation. Tracing and pin-pointing the source of the defamatory statement is
also important, since several channels, protocols, servers and platforms all form part of the process when a
message is disseminated on the internet. It remains immaterial if a defamatory statement was published
unintentionally. What the court looks at is the ripple effect of such statement on the character of the party
who is alleging to have been defamed. At best, the courts seek to ensure that the widespread publicity given
to such defamatory statement is retracted by the same source. Sometimes, while awarding damages, the
monetary aspect of compensation is secondary, as the courts first looks at the publicity given to the
defamatory statement and how it has negatively affected the plaintiff`s character. In the case of Christian
Onyenwe & Anor v Chief Godwin Anaejionu
16
, the courts while determining if a libellous statement that
defamed the character of the plaintiffs to the chairman Aboh Mbaise and 12 other recipients was justified, it
was held as follows: ‘The defaming statement about the claimant in this suit, in the exact words of the text
being ‘ a notorious political tout, a man that has no means of livelihood, a criminal and an instigator, a trouble
shooter, and an irresponsible person given to instigating trouble where blood shed would result’’. The afore-
mentioned recipients were held by the courts to amount to sufficient publication of the defamatory statement.
4. Defamation on the Internet: How Do the Courts Determine Issues Bothering on Liability?
Having laid to rest the factors which the courts looks at to determine if a tort of defamation against a party
in a suit attained the requisite level of publicity, another important aspect of this work would be focusing on
online defamation and what would amount to sufficient publicity to ground an action. Taking into cognizance
the borderless nature of the cyber space, what level of publicity is required to ground an action if such
defamatory statement is published on an online platform. If A is alleging that he was defamed on Facebook,
a worldwide platform, how does A, if based in another jurisdiction, determine the court that will assume
jurisdiction to pursue his claims, or even after securing a judgement in his favour, how does he enforce the
court`s judgement, if based in a different jurisdiction with ‘B’, the source of the defamatory material? Knotty
issues that the advent of ICT has brought about as regards defamation over the internet will be discussed
here. Notwithstanding the scale of immediacy associated with disseminating information on line, virtually
the same principles apply to rules guiding defamation outside of the internet. Intermediaries play a vital role
while trying to determine what amounts to defamation on the internet. The speed at which an original
information can be doctored to amount to defamation makes issues bothering on (Internet Service Provider)
ISP liability necessary while discussing the above head. If our laws distinguish between Libel and
defamation, then there is need to review the above mentioned context in an internet era. Knotty issues have
caused the courts in their judicial activism while deciding matters focusing on ICT, to make pronouncements
which may not ordinarily fall within the ambits of what Libel or slander is in our conventional laws means.
If slander, in normal parlance, means verbal denigrating statements made against a person, which are untrue
before the hearing of others and Libel means putting such statements in a permanent form and making it
public (e.g. Newspaper Publication), how then can our present day judicial system interpret such, when for
instance a voice note over a Whatsapp message is alleged to be defamatory. Would it fall under slander or
would the courts put into consideration the permanency of a voice note and call it Libel? To answer the
above, we would discuss the liability of an Internet Service Provider.
16
CA/OW/338M/2012
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Internet Service Provider`s Liability
Under the general laws of defamation, broadcasting houses, and newspaper companies whose platform are
used to re-publish or re-broadcast defamatory materials/statements, ordinarily would be held liable or joined
as defendants in a suit for defamation, unless they can convince the courts of their neither knowing nor
having any reason to know that such published material was defamatory in nature. Does the above general
rule apply to Internet Service Providers or platforms like Yahoo, Facebook, Twitter, and Whats App whose
platforms are most times used to re-distribute or re-disseminate defamatory statements or generally on ISP
liability who owe the public a duty of care in policing their sites/platforms to ensure that content published
therein is fair, and of good conscience. Several jurisdictions would be reviewed in this section of this work,
to determine, to what extent, an ISP can be held liable for a defamatory material published on its platform.
Much of the cases would be US-based cases as there is a dearth of decided cases on this subject in our
Nigerian Legal system, hence referral to foreign judgements and cases law. While there has been a
longstanding argument on the need limit the evidential burden placed on ISP`s in online defamation cases,
several jurisdictions (UK and US) tried to distinguish between what a carrier of defamatory material is, in
defamation matters and the Publisher of a defamatory material. This clarification will help Nigerian courts
in deciding on matters bothering on online defamation.
Who is a Carrier or a Publisher of a Defamatory Material?
In the case of Cubby Inc. v Compuserve Inc,
17
there was a distinction by the courts in what amounts to
publishing defamatory content by a website and being a mere distributor of a defamatory content on line.
The facts of this case are as follows: Compuserve, operated a bulletin board online, where an independent
company and, in this case (Cameron Communications Inc.), managed its journalism forum. Cameron then
entered into an independent contract with DFA for the provision of a periodical newsletter called
‘Rumorsville,’ which included gossip. Since DFA was a third party with no legal relations with CompuServe,
the bulletin board by DFA did not pass through the editorial board or any form of auditory checks by
CompuServe to review the content posted online. The plaintiffs objected to the content on the site as
defamatory against them and sued Compuserve. It was held by the courts that CompuServe, in this case,
were mere distributors of the online content as their contract did not mandate them to review content posted
on the site by Publishers, hence their being exculpated from any form of liability. The general common law
rule exculpated newspaper vendors and libraries from being joined as parties in a suit for defamation even
though the defamatory material is displayed on their platform. A newspaper vendor on the streets cannot be
held liable for a defamatory statement in the front page of a Sun Newspaper on his stand. The most the
person alleging such defamation could do is to secure a court order to remove from the market any of such
defamatory material found within the vendor`s stand. This same rule applies on online platform or a website
where other online users could publish their adverts, events, soft sale gossip, etc. They act as a medium for
dissemination of information; hence from the ruling of the court, compuserve can be likened to an e-vendors
or e-library and will not be held accountable as the source or author of such defamatory material.
The court held: ‘CompuServe has no more editorial control over such a publication than does a public library,
book store or a newsstand, and it would be no more feasible for CompuServe to examine every publication
it carries for potentially defamatory statements than it would be for any other distributor to do so’ From the
above court`s decision, it can be deduced that the amount of control a website owner wields over the inputs
in his website determines the extent of liability in a defamation charge. The principle is that the higher the
control the more propensity of being held liable for a charge of defamation and vice-versa. While advanced
jurisdictions can boast of a wealth of decided cases on this subject (ISP liability), Nigeria, between the years
2015-2021, reeled out a couple of legislations
18
and in 2021 an ICT framework partially implemented. It is
necessary, at this point to review some advanced jurisdictions, like United States of America and United
Kingdom/EU laws, on this subject. These laws would serve as a guidance for Nigerian courts which are yet
to have much judicial precedence on matters ancillary to the sub-head.
ISP Liability in the United States of America
In the controversial case of Stratton Oakmont Inc. v Prodigy Services Company
19
, a New York Court
digressed from its earlier decision in Cubby` case which offered some form of protection for ISP`s by
distinguishing between a distributor and a publisher. While the defendants in this case relied on the earlier
court`s decision in Cubby`s case, an invitation to treat, placed on their online platform suggested otherwise,
as they advertised their site as ‘family oriented computer network’ and claimed to exercise editorial control
17
776 F. Supp. 135 (S,D.N.Y 1991)
18
Cyber Crime Prohibition and Prevention Act 2015
19
23 Media L. Rep. 1974; 1995 wl 323710
EZEAMA & UMEJIAKU: Regulating Online Activities: Nigeria Twitter Ban in Perspective
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over the site. Such claims placed the burden of monitoring the content placed on the site on them, hence their
being bound by any tort or liability on aggrieved third parties.
With these two conflicting decisions of the United States courts, there was need to settle the dust of
controversy raised, hence an Act of the United States Parliament termed the Communication`s Decency Act
of 1996
20
which came about to settle the above controversy.
Highlights of the United States Communications Decency Act Of 1996
21
It was indeed a herculean task for the Courts in the United States to distinguish between who is a publisher
and who is a mere distributor in matters bothering on ISP liability hence the coming about of the this Act. A
major milestone recorded by this Act. Is enshrined in its S.230
22
which recognizes protection for ISP`s who
take proactive steps in ensuring that their sites are free form obnoxious and offensive content. ISP`s were
also offered protection from liability if while ensuring that their sites are free from content termed offensive
under the Act, they through technical means, restrict access to such material. The Communications Decency
Act 1996 digressed from the initial court`s opinion in Stratton`s case. The position before the advent of the
Act, resulted in ISP`s exempting themselves from conducting any form of due diligence on their platforms
even when it bothers on matters like copyright or distribution of obscene materials online. The passage of
this Act encouraged ISP`s to police what is published on their platforms, while enjoying protection of the
Act resulting from aggrieved third party suits. The attitude by ISP`s since Stratton`s case, has been one of
shielding themselves from liability of what goes on in their site or platform which is contrary to S.230 which
offers a double- barrelled protection for both the users and their ISP provider. This assurance of the protection
offered by the above section 230 re-assures ISP`s of the Act`s protection and encourages them to carry out
self-regulatory roles in monitoring content and taking down obscene, obnoxious and injurious materials,
thereby, playing a quasi-editorial role.
ISP Liability in France: 3 Strikes and Your`E Out Rule
Another strategy to be emulated was devised by the French government to ensure that internet users stay
within the ambits of the laws on Copyright, while conducting their affairs. The law known as Hadopi (Haute
Autorite Pour la Diffussion des (Euvres et laprotection des droits sur internet),
23
which terminates the
internet access of individuals that violate, repeatedly, their copyright laws. At the third violation of their
copyright laws online, the law mandates the government or the ISP, as the case maybe to take down the
violating online content.
5. Justifying or Criticizing the Current Twitter Ban in Nigeria
Regulatory steps,
24
taken by the Nigerian government, in ensuring that its cyber-space is devoid of obnoxious
practices would, sometimes, result in their wielding the big stick. Such bans on some platforms have been
witnessed in countries like Iran
25
, North Korea
26
, France
27
and most recently Nigeria
28
. This part of this work
would critically analyse the reason behind these bans and either justify or recommend better ways of
regulating internet content within a cyber-space, while bearing the civil liberties of citizens in mind. The
borderless nature of the cyber-space, sometimes, makes it impracticable for national laws governing
jurisdictions to apply on activities on the cyber-space. Rules on privacy, defamation, taxation, broadcasting
and internet laws have all encountered such difficulty, while trying to implement local laws on these above-
mentioned heads. To paint a vivid picture on the difficulty faced while trying to apply local legislations on
rules governing ICT in some certain aspects, an American decision in the case of Piedes Negras
Broadcasting Co. v. Commissioner
29
will be understudied. Piedes Negrass, a Mexican suburb, which shares
a boundary with Texas City, USA, operates a studio and a transmitting station and most of their listeners are
20
The Communications Decency Act 1996 (CDA)
21
CDA 1996 ibid.
22
S.230 CDA 1996
23
Haute Autorite Pour la Diffussion des (Euvres et la protection des droits sur internet 2009 Repealed in 2013
24
NITDA (NDPR) Regulations
25
Since 2010 Iran through government bans has clamped down on the internet within its jurisdiction the most recent being the
2019 ban amid violent street protests against increase in gasoline prices. Sourced from <www.rferl.org >accessed on 15th
June,2021 at 2:33pm
26
Asides from telephone communications there is no access to the world wide web and internet access to an ordinary citizen
in North Korea <www.amnesty.org >accessed on 15th June,2021 at 2:33pm
27
Hadopi Ibid.
28
Nigeria`s Government suspension of twitter activities in the country, Punch Newspapers editorial available at
<www.punchng.com >15th June 2021
29
43 B.T.A 297 US Tax Board of Appeals
International Journal of Law and Clinical Legal Education (IJOLACLE) 1 (2020)
Page | 175
residents of the United States of America, whereas the Radio Station was situate in Mexico. Most of their
paid adverts were from residents of Piedes negrass and in a bid to make payment easier for US residents,
they entered into a contract with the plaintiffs in Eagle Pass Texas to collect advert fees, on their behalf,
from the United States resident’s neighbours, who were also regular listeners of their radio programmes.
The United States Tax Office decided to tax the radio station based in Mexico because of the enormous
profits made through paid adverts from their listeners in Texas. The matter was brought before a United
States Tax Board to determine if the Radio station which was based in Mexico should be bound by United
States Tax laws, bearing in mind the borderless nature of disseminating radio waves and signals.
Controversies such as these have bedevilled the courts in recent times as a result of the borderless nature of
the internet. While deciding on this matter, the petitioner relied on the previous decisions of the United State
Tax Board on similar matters citing East Coast Oil Co. S.A.
30
It was held in this instant case that though the
above named oil corporation was a Mexican corporation; that received its payment for oil at its office within
the United States, the courts held that the source of the oil was not from the United States of America. Since
the source of income from the oil emanated from outside the United States, hence Mexico had the rights to
the payments collected from the US office, created as a result of convenience. Other cases cited and relied
on by the petitioner were Briskey Co
31
, N.v Koninklijke Hollandische Lloyd,
32
Helvering v. Stein,
33
Nicholas
Roerich
34
. The respondent, in their submission, argued that Piedes Negrass Broadcast Corporation, having
an outlet or an outpost in Eagle Pass Texas, means doing business within the jurisdiction of the United States
of America. The courts while deciding if the office in Eagle Pass Texas was an office as recognized by the
laws of the United States, considered the reason for the existence of that office and it was unravelled by the
board; Piedes Negrass Broadcast Corp. claimed that the office was solely for receipt and sorting of mails
from their US customers and that the office space was a free donation from a Hotel, which enjoyed their
patronage as a result of traffic from guests who visit because of the Mexican radio station. The board, while
deciding if that space constituted an office took into consideration the rent free nature of the space as no
consideration was offered, the space cannot be termed an office under the United States Laws. It was also
decided by the Tax board, that the collection of payment for broadcasting/advertising was not such activity
as to indicate that their source of income was from within the United States. Based on the strength of the
above, the United States Tax Board ruled in favour of the Mexican Broadcasting Corp. (Piedes Negras), on
the grounds that a small outpost for receipt of mails and correspondence within the United States does not
amount to doing business within the USA and hence not bound by the US Tax laws.
With the above decision of the US Tax Board as a guide, this paper will attempt to either justify or criticize
the recent twitter ban in Nigeria. The above US decision was purely a revenue and a Tax matter, whereas
the Nigeria Twitter ban bothers around breach of privacy policy on an online platform being instrumental in
disseminating inciting and inflammatory statements which have the capability of compromising the
corporate existence of Nigeria
35
. Under the Nigerian criminal law system, such alleged statements
disseminated on twitter platform if proven, can amount to treasonable statements. The question now will be,
who is liable? Is it the ISP (Internet Service Provider), the publisher or the user of the platform? To tackle
the above issues raised, we will first review the twitter privacy and terms of usage and decipher if indeed
their regulation No.4, as claimed by their management, was flouted by a user.
Was there a Binding Contract between the Nigerian President and Twitter?
At this juncture, it might be ideal to review the fundamentals of what forms an electronic contract to decipher
if there exists a binding contract between any twitter account holder and its management. Online contracts
simply mean where humans transact with artificial intelligence, acting as representatives of companies,
making such transactions valid or voidable subject to certain rules governing basic laws of contract
36
. To
enlighten more on this subject, this article will conduct a review of different modes whereby internet users
may enter into online contracts knowingly or unknowingly.
30
31B.T A 558 affd. 85 Fed (2d) 322
31
29 B.T A.987
32
34 B.T.A 830
33
115 Fed. (2d) 468
34
38 B.T A567 affd.
35
Nigeria`s Twitter Ban ibid.
36
C. Ezeama ‘Electronic Contracts are traditional paper contracts still relevant?’ LLM Dissertation Robert Gordon University,
Aberdeen Scotland. Archives 2011
EZEAMA & UMEJIAKU: Regulating Online Activities: Nigeria Twitter Ban in Perspective
Page | 176
Click Wrap and Shrink Wrap Agreements
Tech-companies have gone a step further to ensure that basic elements of contract law are included in online
transactions in order to keep all parties abreast of their duties and liabilities while concluding online
transactions. These types of contract agreements online are most times, neglected by users while concluding
online transactions
37
.
Click Wrap Agreements
These types of online agreements offer the user an opportunity to engage in a somewhat negotiated
agreement with the electronic device or platform before accepting or declining an offer. Usually, a box at
the bottom of the terms of usage or service which contains some other information or terms which parties
are bound to adhere to, is included as a way of concluding the negotiations. Sometimes, a dialogue box asks
the user to either click yes or no in order to complete the transaction. This introduces the fundamental aspect
of a contract called the meeting of minds or in Latin, ‘consensus ad idem’. Hence, clicking ‘yes’ means that
there was a negotiated agreement before the contract was concluded
38
. In the recent case of Spencer Meyer
Vs. Uber Technologies Inc. And Ors.
39
, which bothers on a mandatory arbitration clause contained in the
Uber platform which every user must have to assent to before entering into a valid contract with Uber
company. The plaintiff, in 2014, downloaded onto his smartphone a software application offered by the
defendant company, Uber Technologies. After using the software overtime, the plaintiff brought an action
before the courts claiming that, against the company`s policy which he agreed to online, the drivers of uber
rides, who are third party agents in this agreement, determined the charge of their services as against the
company whom he entered into an agreement with. However, the CEO of Uber Travis Kalanick, in his
defence, claimed that the company`s uber application allowed third party drivers to fix prices. Uber also
claimed that there was an arbitration clause as contained in their terms of service, which was a condition
precedent to any client entering into a contract agreement with the company. It was held, that arbitration in
this matter cannot be compelled. For an agreement to be assented to, via a click wrap agreement online, the
feature must be reasonably conspicuous notice of such agreement in existence, and the user must
unambiguously manifest his assent at the point of registration. Any wrap agreements, short of these two-
limbed approaches, will be seen by the courts as not sufficient notice to either of the parties entering into the
agreement. Clauses like ‘Terms of service’, as stipulated in the highlighted part of this page, form the basis
of transaction with the user, followed by ‘YES I AGREE’, amount to sufficient notice and unambiguous
acceptance of such contract. From the above case, we would review the Uber technologies Software
engineer`s testimony in court as what forms the basis of their e-contract on their platform. With an android
phone, the first screen a user arrives at after downloading the application is
1. CLICKING THE BUTTON MARKED REGISTER, which includes fields where the user would supply
his basic information.
2. After completing this page and clicking next, the user advances to a second screen for payment, where
card details of the user are entered. After such process the user clicks the PAYMENT button,
3. However, there is another box on the payment Screen Marked ‘REGISTER,’ on the same screen as the
payment screen.
4. Still below the credit card input field is yet another box referring the user to a hyperlink, which when
clicked, the terms of service and the privacy policy of Uber tech-service is displayed.
According to the plaintiff, he claimed he did not see such hyperlink which contained the terms of service of
the contract. It was held by the courts that such terms must be conspicuous and unambiguous, leading tech
companies to develop sites which make the registration incomplete without the user reading the terms and
conditions of the service rendered. The element of doubt introduced in this case by the plaintiff, claiming
ignorance of the terms of service, swayed the courts to rule in his favour as to the mandatories and
conspicuousness of the terms of service on the company`s registration platform. With this basic information
on online contracts, this paper will now look at twitter`s website to first determine what type of contract its
users enter into with the management; and what their regulations or rules are, as contained in their privacy
policy.
The first issue to consider is whether Mr. President registered twitter on a twitter.com platform or a
twitter.co.uk platform as these are governed by different rules guiding online transactions in the United
States of America and the United Kingdom/EU
40
. Though the users may be domiciled in any part of the
37
Ibid.
38
Ibid.
39
2nd Circuit Court of Appeals, No. 16-2750 (2017), 868 F.3d 66
40
Twitter Privacy Policy (Website restricted within Jurisdiction as at the time of Publication)
International Journal of Law and Clinical Legal Education (IJOLACLE) 1 (2020)
Page | 177
world but most terms of usage agreements state that ‘should any dispute arise in this transaction, the laws
governing United States or the United Kingdom, as the case maybe would govern this transaction
41
‘. The
above distinction bothers on privacy safeguards of internet users in different jurisdictions, since United
Kingdom Privacy laws offers more data protection measures to internet users within its jurisdiction as against
other jurisdictions
42
.
An Analysis of Regulation Number 4 of Twitter Rules
This rule states that ‘ABUSE /HARRASMENT: You may not engage in the targeted harassment of someone,
or incite other people to do so. This includes wishing or hoping that someone experiences physical harm’
43
.
On the basis of this sole regulation, the tweet of President of Nigeria was taken down and his account
blocked. This section, while trying to justify or criticize the twitter`s management decision to take down the
aforementioned account, would consider the applicable laws governing the transactions between the account
user and the company. Depending on what platform an account was registered on, either the laws of Silicon
Valley, California State in the United States or the laws of United Kingdom and Ireland/EU laws would
govern the transaction taking into consideration the domicile of business of the tech company. If the company
alleges and proves that an utterance was an inciting statement capable of causing physical harm or threat to
persons violating the laws where they are domiciled, then taking a user account down would be a justifiable
44
act by the company. This justification is based on the prior reviewed, decided authority in the case of Piedes
Negrass Broadcasting Corp. vs. Commissioner,
45
where it was held that the domicile of a business is where
its operational equipment are situate and in this case United States. The second limb of this brewing
controversy is the Powers of the Nigerian Government to regulate the activities of an online platform which
operates within its jurisdiction taking into account the borderless nature of the internet. According to a
statement by the Minister of Information in Nigeria, ‘that the persistent use of Twitter for activities capable
of compromising the nation`s corporate existence, hence the ban by government’. To further elucidate on
the above, a review of existing laws governing the cyber-space in Nigeria would be reviewed. While it is
fact that the NCC Act and the NBC Act are specific legislations that tackle the above legal controversy, other
subsidiary legislations like the NITDA NDPR (Regulations) and the Cyber-Security Policy Framework
2021, will be reviewed in other to recommend the international best practices needed to check the excesses
of online broadcasting platforms.
The National Broadcasting Commssion Act Cap N11 LFN 2004
This Act empowers the NBC, by virtue of its S.23
46
, to make regulations subject to the approval of the
Honourable Minister. According to a publication by AELEX
47
, referencing Chapter 2 of the NBC Code 6th
Edition which derives it authority from S.23 of its establishing Act, the code, makes provision for mandatory
registration of all intending web/online broadcasting services with the commission. All web/online
broadcasting providers would also face sanctions which include but not limited to, takedowns order or
blocking of its channels or a shutdown order. A recent newspaper advertorial dated 10th June, 2021, setting
in motion its S.(1)(b)(i) NBC Act, 2004, calling on all OBS providers and social media platforms to obtain
service licence which, hitherto, now was unregulated.
48
There has been this brewing controversy which this
advertorial seems to have laid to rest, regarding the strength a subsidiary legislation has over an enabling
law. Digital Broadcasters like DSTV, until now, have hinged on this argument as a defence to evade
sanctions by NBC. Their argument is hinged on a Supreme Court decision in Famfa Oil v. NNPC
49
on the
powers by the president to grant an OML (Oil Mining licence) and if such powers overrides the dictates of
the constitution. It was held by the courts that ‘ By virtue of S. 44 of the Constitution of the Federal Republic
of Nigeria 1999, no moveable property or interest shall be taken possession of compulsorily and no right
over or interest in any such property shall be acquired except in a manner as prescribed by the Constitution’.
The Courts held that an attempt by the Minister of Petroleum to participate in OML 127 without complying
with the 1st paragraph of S.35 contravenes the provisions of S44 of the CFRN 1999. The Constitution being
the grund norm overrides any regulation by the Federal Ministry of Oil and Gas which strips the constitution
41
Ibid.
42
Max Schrems v Facebook and ors. CJEU 2000/520/EC
43
Regulation Number 4 Twitter Rules available on< www.twitter.com >(Site restricted within jurisdiction), accessed outside
jurisdiction on 11th June, 2021, at 3:29pm
44
S.230 US Communications Decency Act, 1996
45
ibid
46
NBC Act CAP N11 L.F.N 2004
47
<www.aelex.com >
48
OBS providers and social media platforms to obtain service licence which hitherto now was unregulated
<www.proshareng.com >accessed on 11th June, 2021 @ 10:38pm
49
(2012) 12NWLR prt. 148
EZEAMA & UMEJIAKU: Regulating Online Activities: Nigeria Twitter Ban in Perspective
Page | 178
of its powers over the management and granting of oil licences in Nigeria. Linking this above argument to
our present discuss, Digital Broadcasting Operators in Nigeria, while contending with Chapter 2 of NBC
code 6th edition, mandating them to register all web/online digital broadcasting platforms, opined that the
Nigerian Copyrights Act
50
offers them sufficient intellectual property rights protection. DBO`s, in their
argument, opined that a (regulation, rules or codes of practice NBC code 6th edition), which derives its
authority from a substantive law (NBC Act 2004) which creates it, cannot, on its own, override the provisions
of another substantive law (Nigeria Copyrights Act) without first undergoing an amendment, citing the legal
authority of NNPC vs. FAMFA OIL Ltd
51
. However, this argument which, hitherto, now offered some form
of reasonable protection has been overtaken by this recent Newspaper advertorial dated 10th June, 2021,
setting S.(1)(b)(i) NBC Act, into motion which mandates all social media platforms in operation within
Nigeria to from henceforth obtain service licence and clearance for the Government of Nigeria .
On the strength of the above, it can be said that the National Broadcasting Commission with the mandates
of regulating DBO`s; which twitter falls under can, after all make regulations and rules to ensure that the
cyber space in Nigeria is devoid of obnoxious, unscrupulous and inflammatory content. Adequate checks
like issuance of licences, approvals, approvals in principle and enforcements needs to be regular to ensure
quality standards.
Does the Twitter Ban Infringe on the Fundamental Rights of its Users within Jurisdiction?
The Universal Declaration of Human Rights
52
enunciates certain laid down rights which every person is
entitled to. However, these rights become non-absolute when matters bothering on national security or
protecting the sovereignty of a nation become an issue. This begs the question national security and civil
liberty rights of individuals, which overrides the other? In answering this rhetoric, this article will cite some
United States precedents and statues, pre and post 9/11 legislations to underscore the necessity of whittling
down some civil liberties rights while ensuring that peace and security of citizens in a nation is guaranteed.
The Patriot`s Act of 2001
53
, which amended some provisions of existing US laws like The Foreign
Intelligence Surveillance Act FISA (1978)
54
, and The Electronic Communications Privacy Act (1986),
55
reduced restrictions placed on law enforcement agents to wiretap telephone, email information of private
individuals. The Patriot Act, 2001, gives law enforcement agents access to wiretap and trace telephone calls
and emails of US citizens in the course of discharging their duties. In the United States, Security agents,
prior to the advent of the Patriot`s Act, were mandated to secure court warrants before compelling telephone
companies to release phone or email information of private individuals; but the Patriot`s Act gives telephone
service providers the right to disclose private customer information if they reasonably believe that an
emergency, which involves immediate death, danger or serious bodily or physical harm to any person,
requires such disclosure without delay. See Hepting v. AT&T
56
where a class action case was instituted
against AT&T, for disclosing private phone information and records to the office of the NSA. In American
Civil Liberties Union v. NSA
57
, the plaintiffs challenged the spying programme of the NSA (National
Security Agency) of the United States, where a district court declared the programme unconstitutional. The
6th Circuit which is their appellate court for some states including Michigan and Kentucky, overturned the
decision of the district court on the ground that ACLU did not show sufficient evidence of how the
programme affected them and the NSA also invoked the State Secret Privilege rule which gives the
government the privilege not to disclose some information that border on National security. The case of
United States V Reynolds critically examines the meaning of State Secret Privileges, which simply gives the
government the right to withhold vital information from the public based on security reasons.
However, in Al Haramain Islamic Foundation v. Bush Surveillance Programme
58
, the government did not
enjoy the State Secret Privilege because the plaintiffs provided enough evidence to show that they were
subjected to warrantless electronic surveillance.
50
Nigeria Copyrights Act CAP 28 LFN 2004
51
ibid
52
UDHR 1948
53
US Patriots Act 2001 (Uniting and Strengthening America By Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism)
54
Foreign Intelligence Surveillance Act 1978
55
Electronic Communications Privacy Act, 1986
56
439F Supp. 2d 974
57
493 F3d 644
58
District of Oregon Case No. 06-274-K1
International Journal of Law and Clinical Legal Education (IJOLACLE) 1 (2020)
Page | 179
In most cases where the government enjoys its state privilege of not disclosing information that bother on
national security, it is very difficult for private individuals to provide evidence of government`s surveillance
Programmes to prove that their private rights were infringed upon.
To prove that the government made a warrantless intrusion into a private person`s account in the United
states, as claimed by the plaintiff in the above case, the plaintiff must prove that such intrusion was outside
the government`s (targeting procedures). A targeting procedure aims to prevent abuses, such as monitoring
that is baseless and or discriminatory, or surveillance that targets people based on their free-expression rights.
(s. 702 FISA) From the above, if twitter can disprove the Nigerian government`s claims that their activities
in Nigeria would be undermining the corporate existence of the nation, then they can challenge the ban in
our Nigerian courts, but most times, matters bothering on National Security which forms the basis of the
ban, are not made public. Disproving government`s stands on the ban by the company would be a herculean
task.
6. Conclusion and Recommendations
The sole reason for the twitter ban in Nigeria was hinged on activities on twitter platform which was alleged
to have the capacity of undermining Nigeria`s corporate existence. Having established that these activities
bother around the cyber-security of the nation, and the rhetoric of national security of a nation and
fundamental rights of its citizens; which overrides the other? It is recommended that
1. A prototype of the United States Patroit`s Act should be enacted in Nigeria taking into consideration
the current security challenges facing the nation. The Nation through a Cyber-security Policy
Framework 2021, has taken the first giant step towards a roadmap in securing the nation`s cyber-
space. However, most of the short-or medium term plan in this policy document
59
are more of inter-
agency collaboration, trainings, and making of policies and regulations as against the force of law
that is required while dealing with matters bothering on imminent national security threats. The
seriousness by United States Congress in passing the Patriots Act into law, after the deadly twin
tower attacks in America, underscores the importance of National security over personal civil
liberties safeguards. Nigerian Citizens should be able to trade a little bit of their privacy and civil
liberties rights for National Security intrusion as desperate times demand desperate measures.
Bureaucratic bottlenecks like securing court warrants, court orders for wire-tapping (surveillance)
by security agents may be dispensed with if there is reasonable apprehension of danger occurring.
A text message reading ‘meet me with the bombs at the airport’ shouldn`t pass through the routine
safeguards of Fundamental rights liberties as enshrined in our Constitution, NDPR regulations
60
or
the Anti-terrorism laws
61
which require securing the necessary warrants and court orders in order
for security agents to be pre-emptive in their efforts to avert the loss of lives and properties’. In
urgent circumstances, reasonable intrusion can be allowed but can later be challenged in court if
proved unreasonable.
2. A peace-meal approach towards wielding government sanctions on ISP`s and internet intermediaries
should be adopted, rather than an outright ban which adversely affects a young thriving tech-
economy. The French Model of ‘three-strikes, you’re out’ approach
62
should be adopted where
adequate warnings must have been issued to either defaulting subscribers or ISP platforms before
utilising other penal strategies like fines, sanctions and bans.
3. An aggressive educating of the youth on the adverse effects of publishing online materials and
information capable of inciting the public, promote ethnic and cultural division and hate among the
citizenry should be encouraged. Introducing internet ethics, as a curriculum in the junior secondary,
would go a long way in re-orientation of the youth on internet usage and ethics.
4. Cross-border collaboration and partnership, which is one of the strategies adopted by the recent
Cyber-Security Policy Framework 2021
63
by the Office of the National Security Adviser, should be
adequately utilized.
59
National Cyber-Security Policy Framework Document 2021
60
NITDA (NDPR) Regulations 2019
61
Terrorism (Prevention) Amendment Act, 2013
62
ibid
63
National Cyber-Security Policy Framework Document 2021 ibid
Article
Full-text available
Calling out and dragging practice has emerged as one of the dominant popular cultures among Nigerian youths owing to the ubiquity of social media platforms. However, despite the growing acceptability of calling out and dragging among the youths, empirical research focusing on this online practice are generally rare. Therefore, this study investigated University of Ibadan undergraduates' conceptions and dispositions towards calling out and dragging on Twitter. The theory of reasoned action was employed as the conceptual framework, while data were primarily sourced from 318 undergraduates who were selected through the multistage sampling technique. Survey questionnaires and in-depth interview methods were strategically combined for the purpose of data elicitation. Results showed that the majority of the respondents (64%) conceived calling out and dragging as the tagging of the depraved members of society. Although the most significant single share (55.5%) identified celebrities as the category of people frequently called out and dragged on Twitter, most of them (55.9%) mentioned religious issues as the trending topic they usually consciously avoided. Calling out and dragging is an online practice that needs to be moderated because of its potential multiple social ramifications.
ResearchGate has not been able to resolve any references for this publication.