Twitter vs. FG: Who Blinks First?


By Abubakar D. Sani, Esq.

Introduction

The seemingly personal spat between President Buhari and microblogging service provider, Twitter, decidedly took a turn for the worse last week, in the aftermath of the taking down of the President’s controversial threat to ‘speak the language they understand’ directed to malcontents, which he (or his handlers) posted on the site, to which his Government responded by blocking access to the latter by all its Nigerian-based end-users. Needless to say, all hell has since broken loose, as ‘the usual suspects’ (human rights activists, foreign embassies and their governments) have unanimously condemned the Government’s reaction and demanded that the ban be lifted.

Indeed, the public reaction has permeated virtually every strata, with ordinary Nigerians (not just so-called ‘netizens’) joining in the ‘Leave Twitter Alone’ chorus. For its part, the owners of the site have (as usual) promised to engage with the Nigerian authorities to restore access as quickly as possible. This might be dismissed by the cynic as dictated more by economic imperatives (Twitter reportedly has almost 40 million Nigerian users) than anything else. The ban clearly hit where it hurts most.

As for the Government, it appears to have seized the controversy as an opportunity to rein in (or muzzle, depending on your point of view) all social media platforms like Facebook, Google, Whatsapp, Instagram (and Twitter, of course), as it publicly demanded, through its Minister of Information, Mr. Lai Muhammed, that all of them should register with the Government in order to continue operating in Nigeria. This was issued at the same time as a charm offensive which it launched, targeted at foreign (mostly Western) missions in Nigeria, at which it tried to soften the latter’s hard stance against the ban.

Alas, the offensive appears to have been futile: bring back Twitter – immediately – they insisted. So, what will have to happen for both sides to shift ground – without appearing to lose face? It remains to be seen. For now, all options are on the table, as it is hard to imagine that the freedom-loving online networks will ‘surrender without a fight’ to the Government’s perceived attempts to silence or, at least, gag them.

This is where the law comes in. In this regard, it appears that the Government’s preferred legal tool for ‘controlling’ social media platforms is the National Broadcasting Commission Act, 1992 and its subsidiary legislation, the National Broadcasting Code, as amended in 2020. What does the former, in particular, say? Is it what the Government thinks it is, or can it really do what the Government plans to use it for – in terms of regulating social media? Let us see . . .

The National Broadcasting Commission Act

As previously stated, this law came into life as a Military Decree, in 1992. It subsequently took effect as an existing law under Section 315(1) of the 1999 Constitution; this is because, with the exception of wireless and broadcasting provided by State Governments, the National Assembly is eminently competent to legislate on or regulate all other kinds of broadcasting and wireless service providers, including allocation of wave-lengths therefor: see Item 66 of the Exclusive Legislative List of the Constitution. This is not the end of the story, however, as the real question is whether the sort of service provided  by all social media platforms – not just foreign-based ones like Twitter and Facebook – was envisaged by the makers of the NBC Act, either at inception (in 1992, as aforesaid) or since. This calls for a closer look at the provisions of the Act.

Section 1 of the NBC Act established the National Broadcasting Commission and charges it, in Section 2, with the following responsibilities, inter alia:

“(1) (b) receiving, processing and considering applications for the establishment, ownership or operation of radio and television stations, including –

  • cable television services, direct satellite broadcast and any other medium of broadcasting;
  • radio television stations owned, established or operated by the Federal, State or Local Government;

(c) recommending applications through the Minister to the President for the grant of radio and television licences;

(d) regulating and controlling the broadcasting industry;

(f) receiving, considering and investigating complaints from individuals and bodies corporate or incorporate regarding the contents of a broadcast and the conduct of a broadcasting station;

(l) regulating ethical standards and technical excellence in public, private and commercial broadcast stations in Nigeria;

(n) determining and applying sanctions, including revocation of licences of defaulting stations which do not operate in accordance  with the Broadcast Code and in the public interest;

(q) intervening and arbitrating in conflicts in the broadcasting industry;

(s) serving as national consultants on any legislative or regulatory issues on the broadcasting industry”;

“(2) No person shall operate or use any apparatus or premises for the transmission of sound or vision by cable, television, radio, satellite or any other medium of broadcast from anywhere in Nigeria except under and in accordance with the provisions of this Act”

Do the foregoing provisions or any of them entitle the Government to regulate social media platforms? That is the question. I’m afraid, the answer – if the provisions of Section 2(2) of the NBC Act quoted above are anything to go by – appears to be anything but in the affirmative. I submit that this is the only conclusion to be drawn from a plain and literal or grammatical construction of that clause, particularly the words “from anywhere in Nigeria”. Does either Twitter or Facebook (or any of the other popular international social media platforms) operate their broadcast equipment from anywhere in Nigeria? How does a social media platform operate and what equipment (apart from satellites) does it deploy in that regard? Is it like a mobile phone service provider (MTN, GLO, Airtel, etc.) who – apart from satellites – also operate through an extensive network to terrestrial (land-based) so-called ‘cell-sites’, complete with masts and power generators?

Or do they, i.e., the social media platforms, rather ‘piggy-back’ (more like a commercial, if not exactly a symbiotic, relationship) on the latter? What is the practical experience of users of the platforms? Do they have a direct, commercial relationship with the platforms, or is such a relationship rather indirect, through the said mobile phone networks, as well as electronic applications (called “apps”) which are available to download from online market places such as Google Store or Apple Store – which can only be accessed through the self-same mobile phone networks? If – given all the foregoing – the Government is not exactly barking up the wrong tree in ‘targeting’ Twitter and others, can it, in the light of the provisions of Section 2(2) of the NBC Act still proceed, in all conscience?

So much for that.

On the side of the Government, can the ut res magit valeat quam pereat rule of statutory interpretation avail it vis-à-vis the provisions of the NBC Act? This maxim enjoins the interpreter of a statute to do so in such a way (i.e., with the objective – if at all it is possible) of saving it, instead of letting it fail. In this regard, it appears that the only provision of the NBC Act which remotely authorizes the Commission (and, thus, the Government) to regulate social media platforms, is Section 2(1)(d) referred to above. It will be recalled that this provision empowers the Commission to “regulate and control the broadcasting industry”.

There is no doubt that were this provision contained in the Constitution, it would have ‘sailed through’, as the Constitution is judicially required to be interpreted liberally and broadly. But, this is an Act of the National Assembly – to which no such rule applies. So, what is the meaning of “broadcast” or “broadcasting”? Online (again!) resource platform, Wikipedia, defines the latter as “the distribution of audio or video content to a dispersed audience via any electronic mass communications medium, but typically one using the electromagnetic spectrum (radio waves) in a one-to-many model . . . The field of broadcasting includes both government-managed services such as public radio and public television and private commercial radio and commercial television”.

There is no mention of satellite-enabled encrypted microblogging services and their ‘cousins’ (such as Twitter and Facebook respectively). Indeed, in the United States, the Code of Federal Regulations, Title 47, Part 97 defines “broadcasting” as “transmissions intended for reception by the general public, either direct or relayed”. Unfortunately, our own laws, particularly the NBC Act, is completely silent on what “broadcasting” means. No doubt, this would have served as a guide on the scope of the 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.

Conclusion

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. Short of that . . . your guess is as good as mine.

Written By Abubakar D. Sani, Esq.

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