REGULATION OF ‘FAKE NEWS’ AND THE RIGHT TO FREE SPEECH

Introduction

The term ‘fake news’ was given a new meaning by the United States’ (US) President, Donald Trump in the build-up to the US 2016 general elections. It has been defined generally as viral posts of untrue stories posted on social media and made to look like real news. At the heart of the definition of fake news is deliberate misinformation. It could take the form of news fabrication or photo and video manipulations.

However, there is a contextual problem in defining fake news. Politicians and people with ideological motivation for example, have used the term to discredit news published by media organizations that do not favour them like those that we have seen in the United States and elsewhere. In Nigeria, the government is quick to term unfavourable information on social media fake news or ‘hate speech’. While it is conceded fake news exist, this general characterization is too simplistic and reveals an ulterior motive. This creates a problem of conceptualization and exposes why we should be careful with any attempt at prescriptive regulation. 

In whatever way fake news is defined, the problem is not new. Publication of false information has been a feature of society. The difference today however, is the medium and the ease with which false information can reach a global audience. The propensity for misinformation particularly in the political sphere has been magnified by digitisation, which is accessible by anyone with a smart phone. In today’s world, the lines between facts, speculation and fiction has been blurred. No one can dispute the devastating effect of fake news in this age; the question however is the proper approach to its regulation if at all.

Existing Legal framework for combating fake news in Nigeria

There are various laws on the control of mainstream media in Nigeria. Agencies such as the National Broadcasting Commission and the Nigerian Press Council are charged with the duty of regulating broadcasting and the print media. These agencies through their enabling enactments and regulations control the media and have the power to impose sanctions for infractions including publication of fake news. Their power to regulate content is however largely limited or non-existent in the area of the internet and social media.

A very important legal tool relevant to social media is section 24(1) (b) of The Cyber Crime (Prohibition, Prevention Etc.) Act 2015, which criminalizes false information, spread through any digital platform causing annoyance, inconvenience, insult and hatred. When read alongside with section 95 of the Electoral Act, security agencies are empowered to arrest, prosecute people for false, and hate speech. It must however be noted that the law does not cover every conceivable case of fake news. Furthermore, there is considerate doubt as to the legality of the provision because it may be considered a veiled attack on the right to free speech. This is more so when the law does not define the term false information. The politically motivated arrests that have been reported based on the law underscores this inherent danger. In a sense, the law is similar to sedition and criminal libel in the Criminal and Penal Codes. 

Traditionally, the common law tort of defamation is a major safeguard against falsehood. The 2011 Evidence Act[1] that allows admissibility of electronically generated evidence subject to certain conditions has enhanced proof of defamation on social media. However, it must be stated that fake news goes beyond defamation; it includes deliberate misinformation. Another problem is in some cases, it is difficult to establish the publisher of a defamatory statement on the social media and there are jurisdictional questions in view of cross-border nature of defamatory content on the internet. The tort however remains a formidable tool against fake news.

Thoughts on appropriate legal response to fake news

The Nigerian government termed fake news ‘hate speech’ simply to criminalize it without proper definition and have initiated moves to regulate social media. This Negative State approach to regulation will undermine free speech. There is a delicate balance between the need to protect the society from falsehood and creating a dictatorship. A feature of dictatorial regimes is the enactment of various laws surreptitiously aimed at subjugating opposition but presented as a genuine attempt to deal with problems of sedition, libel or falsehood. A prescriptive legal framework against fake news will prevent even real stories from being published for fear of consequences and could become a weapon of political warfare.

The difficulty in maintaining this balance is already playing out in the way other countries are responding to the scourge of fake news. In India, rules prescribing punishment for print and web journalists for spreading fake news was withdrawn within 24 hours of its release after criticisms by media and human rights campaigners. The European Union has adopted the approach of self-regulation by social media companies with a threat of regulation if they fail to do so. In the United US, the first Amendment to the constitution protects free speech whether or not it is false. It is therefore difficult for a legislation to be made banning fake news. However, individuals affected by fake news may have recourse to tortious claims like defamation. The US (like the UK) is also seeking to control foreign interventions in elections using fake news rather than regulating fake news generally.

Unlike in the US, though free speech is protected in France, there is a law, which limits false news publication by the media, but the law is limited and cannot prevent fake news on social media. The French Senate rejected recent attempts at a legislation banning fake news. Other countries like Mexico and Italy have adopted the approach of media literacy by their citizens and are educating them and providing the necessary tools for detecting fake news. They are also collaborating with social media platforms to reduce the incidence of fake news.

The only major country where there was a sweeping legislation against fake news was Malaysia. The law became effective in April but was repealed in August 2008 after a new Prime Minister was elected because it was considered to have stifled the right to free speech. In Germany where the  law forces online platforms to remove “obviously illegal” posts within 24 hours or risk fines of up to €50 million, enforcing the law has proven challenging, and officials are already making plans to review it.

While countries are taking different approaches to regulating fake news, the underlying limitation to prescriptive legislations in many cases is the fear of censorship and dictatorship.  This fear is justified. Historically, laws targeting how people express their views and opinions never solved the problem of falsehood but protected political demagogues and ruthless regimes. In Nigeria, although section 45 of the 1999 constitution allows legislative deviation from fundamental human rights including the right to freedom of expression and the press, such legislation must be reasonably justifiable in a democratic society. There is nothing democratic about a legislation that would have the ultimate effect of restricting free speech, which is the hallmark of democracy. Social media is the 21st century’s greatest democratic tool and the definition of freedom in action.

Free speech allows government and public officials to be held accountable; to take away the right under any guise is inimical to democratic practice and unconstitutional. The US with a similar constitutional provision has held that falsehood does not deprive one of the right to free speech[2]. The Nigerian judiciary demonstrated intolerance to legislation against free speech when it struck down the law on Sedition[3]. Laws like criminal Libel, which is a relic of colonial rule, have been abolished in countries like UK, Ghana, Mexico, Norway, New Zealand and many other commonwealth countries.

Any regulatory framework aimed at combating fake news should focus more on strengthening third parties’ claims against purveyors of fake news and limiting its incidence through education. There is need for a positive state regulatory framework that focuses more on the infrastructures that facilitate information flow in this era. This is to ensure that the right to freedom of expression and the press is not sacrificed under the guise of fake news by negative cohesive measures. It is conceded that Nigeria is disadvantaged in regulating social media infrastructures but may collaborate with the rest of the world in this regard.

Conclusion

Considering the dangers inherent in fake news, there is the temptation by countries including Nigeria to consider anti-fake news laws or the regulation of social media. This temptation must be measured against the constitutional right to freedom of expression and the press. The challenge of defining fake news makes its regulation susceptible to abuse by government actors. The tort of defamation remains the most democratic means of tackling the problems associated with fake news. Legislation in this regard should only aim at empowering the ability of victims of fake news to make claims against the purveyors of fake news without limitations bothering on proof, jurisdiction and malice.

Other measures that should be taken against fake news publication are Public enlightment and education to nurture a culture of skepticism towards social media information. Emphasis should be on the need for verifying the source of the news or information. Whether or not a news publication is genuine may just be a click away. The European Union approach is also important. Laws can be enacted to place a gatekeeper’s role on internet websites and social media platforms as well as support for independent fact-checkers. The challenge here however is that most of these platforms are not hoisted in Nigeria. This will give rise to difficulties in enforcing such regulations but collaborative efforts can be made with social media platforms to educate people. Nigeria should also explore the option of bilateral and multilateral approach to enable access to information about websites and social media platforms hoisted in other countries.

[1] See section 84

[2] See United States v. Alvarez, 567 U.S. 709 (2012)

[3] See Arthur Nwankwo v. The State (1985) 6 NCLR 228