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ASSOCIATED RISK WITH THE USE OF SOCIAL MEDIA IN NIGERIA.

ASSOCIATED LEGAL RISK WITH THE USE OF SOCIAL MEDIA HANDLES IN NIGERIA

Introduction:

The world it is said has become a global village. The late Marshall McLuhan, a media and communication theorist coined the term “global village” in 1964 to describe the phenomenon of the world’s culture shrinking and expanding simultaneously due to pervasive technological advancement which makes room for information dissemination.  It is therefore without doubt that social media is one of the most influential factors of the world being regarded as a global village. The different types of social media platforms include Social Networking sites such Facebook, Linkedin, Whatsapp; Microblogging sites such as Twitter, Tumlr; Photo Sharing Platforms such as Instagram, Snapchat, Pinterest; Video Sharing such as Youtube, Facebook Live, Vimeo.

Due to the importance of social media platforms in our world, certain countries such as Singapore, China, Egypt etc have taken giant strides to regulate the use of social media whilst Nigeria has what the writer likes to term “partial regulation” with a glamour by government for a more stringent and streamlined regulation which met stiff opposition in the country.

The right to use of social media is intertwined with the right of freedom of expression which is a universal right because everyone has the right to freedom of opinion and expression; this right includes the right to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. This right is guaranteed under Article 9 of the African Charter on Human and Peoples’ Rights and Section 39 of the 1999 Constitution of Nigeria (as amended). This right is however not absolute in Nigeria and could be curtailed in the interest of public safety, defence, public order, public morality public health or for the purpose of protecting the rights and freedom of other persons.  This article seeks to outlay the various legal exposures of social media users under the current legal dispensation in Nigeria. For the purpose of clarity, the legal risk/exposures have been classified into civil and criminal.

Difference between civil and criminal liability: A civil liability does not impute any element of crime. The wrongdoer is merely made liable to compensate the victim for the wrong done. Such compensation includes damages, tendering of an apology, order of specific performance of the duty as agreed etc. A criminal liability imputes the commission of crime which is a wrong not only done to the victim but to the state as well. It leads to a finding of guilt which is penalized by a jail term, payment of fine or both.

 

 

Different forms of civil liability:

Libel: Libel is a statement in concrete form which could be written, in audio/videotapes, pictures etc which is false and injurious to the reputation of another. In order for a person to be held liable for libel, the statement must be in concrete form, must have been false, published to a third party and caused a negative reaction to the reputation of the victim. Such a person will be liable to pay damages, retract the publication and tender and unreserved apology to the victim. Libel also has a criminal aspect which is covered under the criminal liability section of this article.

Breach of Copyright:  This is an exclusive right to the use and distribution of a work by its creator. It seeks to protect literary works, musical works, artistic works, cinematograph works, sound recording and broadcasts. In order for a work to be eligible for copyright, it must be in writing, painting, musical recording etc. The following are however exempted from copyright;

  • Commonly known information such as calendars, height and weight, charts, telephone directories tape measures tec.
  • Choreographed whether in its original state or not unless it has been videotaped or notated, speeches not transcribed before or after they are given.
  • Names, titles, short phrases or expressions.

Anybody who violates the copyright of any material through the use of social media maybe liable for damages. Therefore, prior to the use of any copyrighted material on social media platforms, one must seek the consent of the copyright owner by way of an assignment for its use. The exceptions for the use of copyrighted materials are fair use and public domain creative commons licenses. Fair use is a use for non-commercial or nonprofit purposes such as use for research, teaching and other educational purposes. Public domain allows for the use of contents that have expired, forfeited or the copyright has been waived. An example is the works of William Shakespeare.

Criminal liability

Distribution and transmission of Child pornography: Section 23(1) (d) of the cybercrime prohibition and prevention etc ) act, 2015 prohibits the distribution and transmission of child pornographic materials which are materials which visually depicts a minor engaged in sexually explicit conducts, a person appearing to be a minor engaged in sexually explicit conduct, realistic images representing a minor engaged in sexually explicit conduct . The offence is punishable by a 10-year jail term or a fine not more than N20,000,000.00 or to both fine and imprisonment.  A child or minor for the purposes of cybercrime is a person below the age of 18 years.

Cyber stalking: This is the act of sending

  1. Grossly offensive, pornographic or indecent/obscene or menacing messages or content
  2. A false message or content which the sender 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. This is a crime punishable by a fine not exceeding N7,000,000.00 or a term of imprisonment not more than 3 years or both. This section prohibits the publication of “fake news” alongside nude pictures on social media platforms.

Cyber bullying: Cyber bullying is also criminalized under the Act. It is the transmission of messages or content which threaten or harass another person and places the person under fear of death, violence or bodily harm; messages or contents with threats to kidnap or harm a person or request for a ransom for the release of any kidnapped person or to extort from any person, firm, association, or corporation any money or something of value; or any message or content that threaten the property or reputation of a person whether dead or alive or accuse any person of a crime or extort from a person. This crime is punishable with a term of imprisonment of up to 10 years or a minimum fine of N15,000,000.00 depending on the nature of the offence.

Cyber squatting: This is the intentional act of taking a name, business name, trademark, domain name or other words or phrases which are registered, owned and used by an individual or company without the consent of the owner and for the purpose of interfering with the use by the owner. This offence is punishable by a term of imprisonment not exceeding 2 years or a fine of not more than N5,000,000.00

Racist and xenophobic posts and comments: It is a crime to post messages or contents that threatens or insults publicly a person who belongs to a particular race, colour, descent, national, ethnic origin or a group of persons with any of these characteristics. This crime is punishable by a term of imprisonment of not more than 5 years or a fine of not more than N10,000,000.00.

Promotion of genocide or crimes against humanity: It is a crime to post contents that promote crimes against humanity or genocide.  This crime is punishable by a term of imprisonment of not more than 5 years or a fine of not more than N10,000,000.00. Crimes against humanity are crimes against an identifiable population or group of persons in a society. Such crimes include the slave trade, the atrocities crimes committed   by Leopard II of Belgium in Congo.

Attempt, conspiracy, aiding and abetment of crime: Anybody that uses his social media handles to attempt to commit any offence or aid, abets, conspires, counsels, or procures another person to commit any crime is liable to the same punishment provided for the commission of the crime.

Criminal defamation of character: The publication of any matter which is likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or likely to damage any person in his profession or trade by any injury to his person whether that person is dead or alive is an offence. It is an offence punishable by a 1 year term of imprisonment to publish a false statement online whilst the publication of a false statement online knowingly is punishable by a 2 year term of imprisonment under the Criminal Code. This may have been the charge of the Akwa Ibom State government against Kufre Carter, a journalist in the State.

Sedition and incitement: Sedition is an act of promoting hatred, contempt or disaffection against the President, governor of a state or the federal government or promote a feeling of ill-will and hostility between different classes of the population on Nigeria. Incitement is the encouragement of the public to commit a crime. Sedition is punishable by a term of imprisonment not exceeding 3 years and a fine of N200 or both.

How to minimize legal exposures on social media.

  1. Read and understand before accepting the terms of use of the various social media platforms which may be updated from time to time. For instance, Instagram and Facebook recently updated its guidelines for the use of copyrighted music accompanying a live video or recorded video.
  2. Think before you post. Not everything is meant for the social media space.
  3. Use disclaimers especially for those who derive pecuniary/monetary benefit from what they post.
  4. Do not make use of any copyrighted work without permission.

Conclusion: Social media has grown to become an essential fabric of human existence. It is now used for various purposes such as dissimilation of information, advertisement/promotions, entertainment and even for job interviews. It is therefore important for one to understand the legal risk associated with its use in order to minimize legal exposures.

 

Written by: Koko Asuquo.

 

References:

Implications of global village by violet k. Dixon

Google.com

Introspections: legal realities of blogging in Nigeria by titilade adelekun ilesanmi

The rights of privacy, libel and slander, sedition and defamation in journalism by Armstrong idachabe

The 1999 constitution of Nigeria (as amended)

The cybercrime (prohibition, prevention etc) act, 2015

The criminal code act of Nigeria

The European Convention for the Protection of Human Rights and Fundamental Freedoms

The American Convention on Human Rights

 

 

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