As we increasingly conduct our lives online- shopping, socializing, and sharing information – our digital rights, particularly the right to privacy and freedom of expression are becoming more important. Hence the need to understand how our data is being used by companies, governments, and internet giants such as Facebook and Google1. In response to the excerpt, several laws have been issued and enacted amongst which is the Cybercrime Act of 2015 (which aims at criminalizing certain messages or contents that would bring harm to others) as well as a provision of the 1999 constitution which remain the grundnorm.
This paper examines the digital rights available, the laws and provisions safeguarding it, the threat posed towards it by authorities, and suggests a way to its enforcement.
Digital Rights In Nigeria
Digital rights are rights that protect people’s freedom of expression, data, access, and management of social media. It can be said to include the protection of data belonging to persons as well as leading to the enforcement of data privacy. It is the right that accrues to an individual in a digital space.
It is of great importance to note that all fundamental rights as enshrined in the Constitution of the Federal Republic of Nigeria, which guides the activities of every human person in the country have a nexus to the rights which exists online. Every user of the digital space has a right to life i.e. a right to exist in the digital space, a right to express himself and to belong to associations or groups as he may so desire online. In lieu of this, the Right to privacy and Right to freedom of expression is connected and as well, an important aspect of digital rights.2
It is no gainsaying that data privacy exists to protect the data of individuals to prevent abuse and encroachment on their rights, hence the reason for the issuance of the Nigeria Data Protection Regulation of 2019 by the National Information Technology Development Agency Act 2007(NITDA). Arguably, the Nigeria Data Protection Regulation has been said to be a facsimile of the European Union’s General Data Protection Regulation which also provides for the protection of the data of persons. This giant leap has caused quite a stir in the sporadic development of the Nigerian government which states its objective to ensure her business remains competitive in international trade through the legal safeguards afforded by a just and equitable regulatory framework on data protection.3
The Nigerian Data Protection Regulation which is in four phases has indeed created rights of data subjects which include the right to give consent when data belonging to them is to be taken, awareness about the purpose of giving data while bestowing on the data controller a duty to make all data received, confidential.4 In the Nigerian cases of Godfrey Nya Eneye v MTN Nigeria Communications ltd5 and Barr. Ezugwu Anene v Airtel Nigeria Ltd6, damages of 5million naira were issued against the defendants and in the former case, the court held that the unauthorized disclosure of the claimants mobile phone number by his telecommunications service provider (the defendant) and subsequent unsolicited text messages he received from unknown third parties were violations of his constitutional right to privacy and similar verdict was reached in the latter case.
To further safeguard the digital rights of Nigeria citizens, other laws have been directed towards the prevention of cyber threats7 identity theft and impersonation8 child pornography and related offences9 cyberstalking10 amongst others. It therefore suffices to say that there exist digital rights for the protection of the Nigerian citizens.
In addition to the above laws the Central Bank Consumers Protection Framework prohibits financial institutions from disclosing the personal information of their customers and also ensure that financial institutions take appropriate measures to safeguard customers data and necessitates the prior consent of their customer before sharing their data with anyone.11
2. Clampdown By Authorities On Digital Rights
For every Fundamental right that is codified in the Constitution of the Federal Republic of Nigeria otherwise known as the grundnorm, exists a limitation and the Freedom of expression is no exception.
Nigeria’s recent clampdown in 2021 on Twitter’s operations caused concerns over the country’s commitment to the protection of human rights offline and online. These concerns are hinged on citizens’ right to freedom of expression as guaranteed in section 39 of Nigeria’s constitution. The Nigerian government blamed Twitter for the violence that trailed protests and used the exceptions to the freedom of expression (the right to expression may be restricted where it is in breach of public peace and public morality) as a reason why there must be a clampdown of Twitter. But critics said that the government was less truthful about its intentions and only wanted to restrict the expression of the people in the digital space12.
As it is often said, ‘for every rule, exists an exception’’. The same applies to the interpretation and enforcement of digital rights in Nigeria. Although there are authorities that safeguard the rights of citizens digitally, the interpretation of a minuscule of such laws gives room for ambiguity and as such may birth injustice, support criminal activities, and lead to a clampdown on the rights of individuals.
Cyberstalking is defined to be an act by any person who knowingly or intentionally sends a message or other matter by means of computer systems or network that (a) is grossly offensive, pornographic, or of an indecent, obscene, or menacing character or causes any such message or matter to be so sent; or (b) he knows 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. Thus it seeks to protect the digital rights owned by individuals, and criminalize any act which is deemed to be an abuse or encroachment on the digital rights of a person13.
The above provision which criminalizes messages that may be insulting, lead to intimidation, or annoyance inter-alia is vague, for there is no provision to give meaning as to when a message can be classified as annoying, offensive, or be measured as an insult. What constitutes the aforementioned varies according to personalities. In lieu of this, a fact made or written about a person on the internet may be rendered abysmal or criminal in nature by virtue of section 24 of the Cybercrime Act, 2015 only because the recipient deems the message annoying or insulting. The vagueness of the terms used poses a threat as what may be considered to be annoying or insulting varies according to personalities.
More so, the provisions of the above-mentioned section create a leeway that may be used by the government as a tool for punishing individuals and the press who dares to demand for accountability or criticize its administration. For example, the Internal Security and Enforcement Law which was enacted as an anti-kidnapping measure in Akwa Ibom state in 2009, has since been used to suppress government critics. Its section 6(1) which mentions the word public disturbance has been used to sentence critics to jail. Also, in Abia state, Obinna D. Norman who is the founder and editor of the online Realm News in March 2019 was arrested by the Police and accused of defaming and harassing a state senator, he was charged with Cyber-stalking under state anti-terrorism and kidnapping laws and the Federal Cybercrime Act. Thereby establishing that such leeway encroaches on the freedom of expression, a major characteristic of a democratic state and in the absence of which, would lead to an autocratic regime14.
3 Pathways For Enforcement
It is a laudable feat that there are several laws protecting the digital rights of the citizens of Nigeria which includes the Cybercrime Act of 2015, and the Child Right Act of 2003 spelling the right of every child to ‘privacy, family life, home, correspondence, telephone conversations and telegraphic communications,15 National Identity Management Commission NIMC Act 200716 inter alia. However, the most comprehensive digital rights law has been the Nigerian Data Protection Regulation that came into being in the year 2019 while every other law has merely contributed in some aspect in order to safeguard digital rights.
Furthermore, the provisions made to further strengthen the band of digital rights in some of these laws have given room for a lacuna such that if care is not taken, the laws will give room for ambiguity, injustice, and harshness on the citizens. A great illustration is the provisions of section 24 of the Cybercrime Act 2015 which is captivating and made with the aim of protecting the digital rights of citizens as well as criminalizing acts which are not in conformity with the protection of digital rights. However, it poses a threat by creating a leeway for the government and arming the same with the opportunity to encroach on the freedom of expression, the very reason the act was made.
In 2019, the Digital Rights and Freedom bill which was proposed in April 2015 by Nets Right Africa Coalition of Civil Society Organizations led by the paradigm initiative inter alia was declined as the president refused to give assent to it. The bill was to provide for the protection of human rights online, to protect internet users in Nigeria from the infringement of their fundamental freedom, to guarantee the application of human rights for users of digital platforms and or digital media for related matters.
I strongly believe that for the existence of digital rights which cannot be exploited and breached to be made available to the citizens of Nigeria, the government needs to review the Digital Rights and Freedoms Bill and as well pass the same into law.
Finally, I opine that the legislation with lacuna e.g. the Cybercrime Act of 2015, which could provide room for ambiguity be reviewed and treated with utmost care while the vague terms are given a definite expression in order for it to serve their purpose, public awareness as regards digital rights should be made and Digital Rights and Freedom Bill should be passed into law.
1. Rosamond Hutt ‘The digital economy’ (What are your digital rights 13th November 2015) https://www.weforum.org/agenda/2015/11/what-are-your-digital-rights-explainer/ accessed on 20th September 2022.
2. Constitution of the Federal Republic of Nigeria, 1999 (as amended), chapter 4.
3. Nigerian Data Protection Regulation, 2019, 1.1
4. Nigerian Data Protection Regulation, 2019
5. Appeal No. CA/A/689/2013 (Unreported)
6. Suit No. FCT/HC/CV/545/2015 (Unreported)
7. Cybercrime Prohibition and Prevention Act, 2015, section21.
8. Cybercrime Prohibition and Prevention Act, 2015, section22
9. Cybercrime Prohibition and Prevention Act, 2015, section23
10. Cybercrime Prohibition and Prevention Act, 2015, section24
11. Consumers Protection Framework 2016
12. Dennis Erezi “we might choose to live as slaves’-Nigeria’s social media clampdown raises human rights concern (The Guardian, 22 June, 2021) https://editor.guardian.ng/news/we-might-choose-to-live-as-slaves-nigeria-social-media-clampdown-raises-hunam-rights-concern/ accessed 19th September, 2022.
13. Cybercrime Prohibition and Prevention Act, 2015, section24
14. Adeboye Adegoke’DIGITAL RIGHTS AND PRIVACY IN NIGERIA” (2022) 10
15. Child Right Act 2003, section 8
16. National Identity Management Commission Act 2007, No.23 (Federal Republic of Nigeria Gazette No 23, vol 94) https://www.nimc.gov.ng/docs/reports/nimcact.pdf. Accessed on 20th September, 2022.