Funmilayo Odude, Legal Practitioner, Damod Law Practice

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A principled regulatory framework for OTTs in Nigeria 09 Jul 2021

The regulation of over-the-top (OTT) services, i.e., media contents offered directly to users via the internet, is an ongoing global conversation. The benefits of the technology and innovative services notwithstanding, there have been concerns about their negative impact on the society and on competition in local industries. However, the growing dependence on technology for modern human existence puts stakeholders in a quandary as to how to achieve the delicate balance between adequate regulation of technology and stifling of human rights and innovation.
        
Nigeria has taken some regulatory strides in data protection and privacy concerns. For instance, the Securities and Exchange Commission (SEC) has taken steps to ensure investor protection in response to the increasing number of digital assets, online investment platforms and crowdfunding portals in the country. Amongst other regulatory reviews to keep up with market dynamics, SEC updated its rules on crowdfunding on the 21st of January 2021.

However, the regulation of social media by the government has been a sore point. Efforts by the National Assembly to pass various forms of “social media” bills have been unsuccessful because of alleged unconstitutionality of some of the provisions, and possibly the intent, of the bills. In a determination to push through social media regulation, the Minister of Information and Culture, Lai Mohammed, last month, announced that it had banned the microblogging site, Twitter, in the country. Nigeria, therefore, joined the four other countries that have banned Twitter, namely China, Iran, North Korea and Turkmenistan.

The Twitter ban came after the site deleted tweets by the Nigerian President, Muhammadu Buhari. The offending tweets were viewed by many as a threat by the president against ethnic Igbos of the Southeastern part of the country, by referencing the disastrous events of the Nigerian civil war between 1967 and 1970. The ban came with further instructions to the National Broadcasting Commission (NBC) to begin the process of issuing licenses to all internet streaming services and social media operations in Nigeria.

The draconian manner in which the government seeks to kick off its regulatory regime of OTTs in the country has done much damage to its reputation and raised questions regarding the protection of the citizens’ right to freedom of speech and expression. Already, the ban is being challenged in national and regional courts.  

In pursuit of various objectives, many of the world’s jurisdictions are pushing for the regulation of OTTs in some ways. Some of the countries are guided by their democratic ethos, free-market ideology, and the principle of fair competition. The objective of such regulations in Nigeria, however, has a question mark. What are the underlying values by which the country seeks to effectuate social media and internet regulations?

Nevertheless, the concerns of the government over the negative impact of these technologies are not entirely unfounded. The world has since been awakened to the threat of unauthorized data access and the use of such data illegally obtained to affect elections in foreign countries, based on the scandalous example of Cambridge Analytica. Unknown to the users, the British firm used millions of Facebook accounts to create profiles for targeted political advertisements in the 2016 presidential election in the United States.

Social media can, indeed, be a tool to undermine democratic processes and exploit vulnerabilities in societies. In this regard, one cannot dismiss offhandedly the possibility of using the social media to exploit Nigeria’s challenges with ethnic diversity, current insecurity, economic recession and corruption. However, the government seems to have an ulterior motive other than these concerns in wanting to regulate OTTs, thereby giving credence to its mistrust by the citizens.

Most of the bills that have been introduced to ‘regulate’ social media have appeared to merely be attempts to curb free speech in the country. Whereas the negative effect of fake news should not be underemphasized, the current cybercrime laws in the country which penalize fake news and defamation have been mostly used against journalists who exposed some unflattering news about government officials or agencies. There has hardly been any successful prosecution of any purveyor of fake news despite subsisting laws and in spite of the claims of the prevalence of the crime.

The current efforts at regulating OTTs, on the heels of banning Twitter in Nigeria after it deleted President Buhari’s inflammatory tweets, indicate a malicious response by a government that seems locked in a running battle with the citizens. The government has continued to stress the support of Twitter for the #EndSARS protest last year, which culminated in the shooting of protesters by officers of the Nigerian Army at the Lekki Tollgate, Lagos, and the breakdown of law and order in several parts of the country. In what appears to be a paranoia since then, the government tends to view protests as an attempt to overthrow it.

Any legislative or policy enactment on the basis of distrust of the people and intolerance of the exercise of fundamental human rights of free speech and lawful ventilation of grievances would be counterproductive. The vital premise upon which the regulation of OTTs must rest is the understanding that access to the internet is a fundamental right. Although there is yet to be any jurisprudence on this issue in Nigeria, the Supreme Court in India has recently held that access to the internet is part of the exercise of the constitutional right to freedom of speech and expression, which must not be breached except under explicit conditions mentioned in the Constitution.

This decision is in line with the recommendation of the United Nations. As Wafa Ben-Hassine, a MENA Policy Counsel for Access Now, an organization that defends digital rights, stated in a paper for the United Nations Chronicle, “Government Policy for the internet must be Rights-based and user-centred.”

As a juxtaposition to the above principle, Singapore’s regulatory agency, the Infocomm Media Development Authority (IMDA), mandates service providers in the city-state to obtain a license. There is a content code for OTTs that covers classification of content, parental lock and age verification, display of rating, and content elements. It also has a list of prohibited content. The agency can withdraw content or impose a penalty. Foreign entities that operate OTT services in Singapore are also bound by these requirements.

The legal framework for OTTs in Singapore is underpinned by the Protection from Online Falsehoods and Manipulation Act (POFMA), which came into effect in October 2019. The Act allows a minister to declare that online content is ‘false’ and order a ‘correction notice’ to be placed on the relevant social media pages. Failure to comply with a correction order is punishable with the shutdown of the social media pages, up to 12 months in prison, and a S$20,000 (US$14,670) fine.

These are not practically innocuous legal and regulatory frameworks. The Human Rights Watch (HRW) in its 2021 World Report on Singapore provides insights into the effect of the POFMA. According to HRW, “as of July 1, 2020, the government invoked POFMA more than 50 times, primarily against contents critical of it or its policies. Correction notices were issued to independent online media, such as The Online Citizen and New Naratif, opposition politicians, and activists. Ministers issued several correction notices to opposition politicians or political parties during the nine-day election campaign in July. In January 2020, the minister for home affairs issued a correction notice to the Malaysian non-governmental group, Lawyers for Liberty (LFL), asserting that its press statement outlining execution methods in Singapore was false. LFL declined to comply with the order, and on January 23, the Singapore authorities ordered the NGO’s website blocked in Singapore.”

Although of a benevolent hue, Singapore has lent towards dictatorship since the transformational government of its foremost statesman, Lee Kuan Yew. Legal and regulatory frameworks in Nigeria like those in Singapore would be expected to have more draconian effects, based on the country’s history of military autocracy which continues to have influence on the subsisting democratic dispensation.

Technology and innovation are essential for economic and societal progress in the 21st century. Therefore, the appropriate legal and regulatory frameworks should be to encourage technology and innovation, while ensuring fair competition and holding operators to ethical standards, the violation of which should be punishable in accordance with the constitution.

Regulations do not only affect the OTT service providers, but also consumers and investors. Regulatory interventions must thus protect the varying interests of these diverse stakeholders. Dialogue with relevant stakeholders is not only helpful but also necessary.

The Policy, Competition and Economic Analysis Department of the Nigerian Communications Commission (NCC) in a paper titled “An overview of provision of over the top (OTT) services” published on its website, gave the following recommendations with respect to the Commission’s role:

1)    The Commission should conduct a stakeholder’s consultative forum on the provision of over-the-top services in Nigeria to determine if regulation is required for such services and its impact on the growth of the Nigerian Telecoms industry.
2)    Following the consultations, the Commission should review its Guidelines on the provision of International Gateway and Voice over Internet Service and also consider an appropriate Framework for Provision and Regulation of over-the- top services in the Nigerian Telecoms market.
3)    The Commission must ensure that it does not stifle innovation since internet penetration is still evolving, access speeds are still low and there is limited coverage of high-speed broadband in Nigeria.
4)    The Commission should encourage network providers in Nigeria to innovate and explore more efficient business models that would enable them to compete favourably with OTT service providers. Network providers can also take advantage of the internet protocol technology in the design for their network upgrades.”
    
The government should adopt this same principle enunciated by its regulatory agency.

Funmilayo Odude, a Financial Nigeria columnist, is a Lagos-based legal practitioner, and a public affairs analyst.