A Human Rights-Based Approach to Disinformation in Nigeria

Fake news. Disinformation. Propaganda—whatever you call it, is a pressing problem bedeviling societies in sub-Saharan Africa. In recent years, Nigeria has been grappling again with pervasive levels of false or misleading information. Though not a new problem, the ease with which it's reaching wider audiences in new and often insidious ways, has made the need to tackle it more urgent. This has further amplified its human rights implications. From the various national laws to state laws, governments' responses to the problems of misinformation and disinformation have often been inadequate and detrimental, as many of the laws and proposals being proffered pose real threats to freedom of expression.

However, instead of punishment and censorship, human rights offer a different path that the government should take in order to minimize the impact of false and misleading information. In this article, I bring to view why a human rights-based approach can be instrumental, both in identifying the harms to be addressed, and in the formulation of policies.

WHAT IS DISINFORMATION?

Tackling disinformation is particularly challenging due to the difficulty in defining the concept which is commonly described as “fake news” or “false news”. The terms take many different forms and encompass news and reports that are wholly fabricated, along with others with only one viewpoint or quoted out of context. Some reports or stories are half-truths. And sometimes, they're satire or parodies, which is capable of misleading if taken at face value. First Draft has initiated a taxonomy of seven different types of such information and online media content that could be considered “fake news”.

For these reasons, there is a budding acceptance that these other terms should accordingly be used in its [fake news] place. The most commonly proffered are “disinformation” and “misinformation”. While neither has a conventional or universally accepted definition, example definitions include:

• Disinformation: Verifiably false, misleading or inaccurate information that, cumulatively, is designed, presented, and disseminated for economic profit or to intentionally cause public harm.
• Misinformation: The unintentional dissemination of inaccurate or misleading information without intent to cause harm.

These two terms are more appropriate and have advantages over “fake news”, in that they clearly outline the extent of the particular type of information, the engendered harm, and the intent (or otherwise).

WHY IS DISINFORMATION A HUMAN RIGHTS ISSUE?

Disinformation is a human rights issue because, its dissemination engender a range of human rights in Nigeria, some more than others:

• The right to freedom of expression (enshrined in Section 39 of the 1999 Nigerian Constitution [CFRN], Article 19 of the International Covenant on Civil and Political Rights [ICCPR], and Article 9 of the African Charter on Human and Peoples’ Rights [ACHPR]): Inappropriate policy responses to disinformation are detrimental as many of the laws raise real threats and pose threats to freedom of expression.
• The right to free and fair elections (Article 13 of the ACHPR and Article 25 of the ICCPR): Citizens need to participate freely and have accurate information about the candidates for an election to be free and fair. However, false information threatens that.
• The right to health (Article 16 of the ACHPR and Article 12 of the International Covenant on Economic, Social and Cultural Rights [ICESCR]): Inaccurate information about health issues, such as false information on vaccines, may deter people from taking vaccines, thereby putting them (and others) at greater risk. For example, The National Primary Health Care Development Agency, NPHCDA, has identified misinformation as one of the key factors responsible for low uptake of COVID-19 vaccine in Nigeria.
• The right to dignity and freedom from unlawful attacks upon one’s reputation (Section 34 of the CFRN, Article 5 of the ACHPR, and Article 17 of the ICCPR): Disinformation often targets individuals—particularly activists, journalists, public figures—and is designed to harm their reputation.
• The right to non-discrimination (Section 42 of the CFRN, Article 2 of the ACHPR, and Articles 2(1), 26 of the ICCPR): Disinformation sometimes targets particular groups in Nigeria—such as particular ethnic groups or religions—and is designed to incite hostility, violence, or discrimination.

BACKGROUND TO THE NIGERIA LAWS

The African Media Barometer (AMB) Nigeria 2019 Report by fesmedia Africa highlighted that “Even though the [Nigerian] constitution recognises and grants freedom of expression as a fundamental right, a range of laws and pieces of legislation restrict the full enjoyment of that right. These restrictions may be laws that directly affect the practice of journalism, such as criminal libel. Others are loopholes in the country’s collection of laws and regulations that can be abusively evoked to infringe on freedom of expression.” It further highlighted some of these “collection of laws” such as the “Cybercrime Act, Anti-terrorism Act, Official Secrets Act, the law on sedition (which was declared inapplicable by an appeal court judgement, but has not been formally repealed), and the Nigerian Press Council Act (which has been in place since the 1970s)” as a perpetual restriction to freedom of the media.

Unfortunately, the federal government and some state governments have continued to adopt these repressive measures, such as censorship and criminalization of what is deemed “fake news”, despite their counterproductive effects and impact on the right to freedom of expression.

On 13th June 2022, the National Information Technology Development Agency (NITDA) issued the draft Code of Practice for Interactive Computer Service Platforms/Internet Intermediaries. According to NITDA, the Code is aimed at "protecting the fundamental human rights of Nigerians and non-Nigerians living in the country and also curtailing fake news and hate speech. However, there are grave concerns about some of its provisions that pose a threat to freedom of expression as guaranteed by the Nigerian Constitution and International Human Rights law.

Amnesty International noted that “In Part V of the draft Code, the use of Misinformation/Disinformation appears to be a vague distinction. While we admit that everyone does not use the terms the same way, it is clear from the draft code that they intend to cover both disinformation and misinformation. However, criminalizing misinformation that is merely false, regardless of intent could be problematic. Prohibitions on the expression of factually incorrect opinions are clearly incompatible with human rights law and can be used to criminalize a wide range of protected expression.” The code of practice was recently signed by the Minister of Communications and Digital Economy and the Director General of NITDA despite the concerns raised.

The Nigerian Criminal Code Act also contains several provisions that have an impact on the dissemination of information in Nigeria like provisions that criminalise defamation (Section 33) and publication of false news with intent to cause fear and alarm to the public (Section 59). The offences carry punishments of up to seven and three years’ imprisonment respectively, and the former has been used to clamp down on journalists and activists.

Though these laws aim to protect the reputation of individuals which is a legitimate aim under Article 19(3) of the ICCPR. However, punishing defamation through the application of criminal laws is inconsistent with international human rights law and practice. It should rather be subject only to civil or administrative sanctions. The three-part test stipulates all restrictions on freedom of expression must be proportionate to the harm done and not go beyond what is necessary for the particular circumstances.

The provisions of Section 59 (publication of false news with intent to cause fear and alarm to the public) are vague and broad, contrary to the requirement that the restrictions are “provided by law” set by Article 19(3) ICCPR which requires that "any regulation be formulated with sufficient precision to enable individuals to regulate their conduct accordingly". As the scope of what it means for information to be ‘false’ is entirely a subjective one.

The prohibitions of false information in the states laws have also been used indiscriminately to limit critical reporting by clamping down on journalists.

The vagueness of the provisions of the Criminal Code, other national laws and respective provisions of the state laws open them up to abuse by the public authorities by simply labeling reports as likely to cause harm or fear. And also conflict with the tenets of a democratic society.

HUMAN RIGHTS-BASED APPROACH TO TACKLING MISINFORMATION AND DISINFORMATION

False and misleading information cannot be easily addressed or simply expunged, particularly in the digital age. Restrictions such as punitive laws, closing down of media outlets, and persecution of journalists and human rights defenders, do not only contravene international human rights law but are also ineffective measures that do not tackle the root causes of disinformation. On the contrary, it poses threats to free media.

A human rights-based approach to disinformation would, by contrast, be designed and targeted towards addressing the adverse human rights implications caused by disinformation, rather than disinformation itself. This would mean clear legal requirements for objective harm to be caused before liability is attached to a particular piece of disinformation. As well as greater efforts to improve the digital literacy of internet users, thereby reducing the impacts that disinformation has, than resorting to legislation at all. Policymakers considering developing a policy or law should make sure that their approach is in line with international human rights law and standards.  Some initial universal guiding questions are:

• Does the policy include any restrictions on particular content and are these set out in law? Otherwise it contravenes international human rights laws and standards.
• Is there clarity in these policies or laws? Vague ideas such as “false news” for example, should be clearly defined into acts or conducts that may cause fear and alarm to limit it in scope and prevent it from being abused. Otherwise, it would fail this test.
• Do any restrictions in the law recognize an instance where the individual reasonably believed the information to be true?
• Are determinations of whether speech or content is disinformation made by an independent and impartial judicial authority?
• Are the responses or sanctions proportionate? (Heavy fines, imprisonment, and the blocking of websites, for example, are all likely to be disproportionate.)

HUMAN RIGHTS DEFENDERS AND DIGITAL RIGHTS ACTIVISTS HAVE A ROLE TO PLAY

The harm that disinformation causes to human rights, coupled with repressive laws that threaten free media and digital rights necessitates engagement by human rights defenders. Human rights defenders are, after all, uniquely able to promote a human rights approach when devising responses to policy challenges, including disinformation.

While models of best practice are few and far between, those engaging on the issue from a human rights perspective can draw support from resources such as GPD’s booklet on disinformation and human rights; the joint report on good policymaking when it comes to disinformation; and the African Media Barometer Publications by fesmedia Africa.

The views expressed and conclusions made in this article are those of the author and do not necessarily reflect the views and opinions of fesmedia Africa, the Friedrich-Ebert-Stiftung (FES), or the Media Institute of Southern Africa (MISA).