UNDERSTANDING DISINFORMATION AND MISINFORMATION AS DEFINED BY THE NEW NITDA CODE

UNDERSTANDING DISINFORMATION AND MISINFORMATION AS DEFINED BY THE NEW NITDA CODE

We use a lot of words in our age and it appears that there is no perfect understanding of what they mean. It is not hard if it is a legal term and the law has given a proper interpretation of the word such that it doesn't matter what the whole world defines the word as, the interpretation section of that law defines what the word means. The use of words across the social media platform has revealed that many have different meanings to whatever they say but when it comes to the law, the opposite is the case. The law dictates the meaning of any big term, word or phrase.?

Recently, the Nigerian Information Technology Development Agency (NITDA) released a draft of the Code Of Practice for Internet Inmediariaries (social media platforms and other related companies. The Agency is still receiving comments on the Code at the time of writing this and the code may be different by the time it becomes effective. One of the main objectives of the code is to curb the excesses of misinformation and disinformation. A proper investigation of what the code means by the word disinformation must be done or else it will seem as if the intent of the code may not be properly appreciated. To this end, I will enjoin you to join me as we embark on the voyage of understanding where we will see what the law in Nigeria has said about the terms disinformation and misinformation, and what the court has said about disinformation and misinformation (if any) and now look at the code to see what it means by disinformation and also identify what kind of information will fall into the category of disinformation according to the law.

Let's start with the dictionary meaning of disinformation. Oxford Advanced Learner's Dictionary:

Disinformation noun /?d?s??nf?r?me??n/? [uncountable] False information that is given deliberately, especially by government organizations

Also, misinformation is defined thus:

Misinformation noun ?/?m?s?nf??me??n/ /?m?s?nf?r?me??n/ [uncountable] The act of giving wrong information about something; the wrong information that is given

Having done a perusal of the English dictionary of the word disinformation and misinformation, let us take a look into different Nigerian laws. We need to investigate if the words have been used before and what those laws define them as. If not, are there words with the same definition that have similar or close meanings to the word we seek to investigate?

Are there Nigerian laws regarding the use of these words before It?? Let us go through related laws such as the Cybercrimes Act, The NITDA Act, the Nigerian Broadcasting Code, the Freedom of Information Act, Defamation Laws and other laws that may be related to the passage of information in Nigeria. Of course, analyzing the different laws, we cannot find a specific mention of the word misinformation or disinformation, but we can refer to the similarities that exist in those laws. Take, for example, the word defamation has been defined both by the Criminal Code (Section 373-381) and Penal Code (291-295) as a crime related to information passed about someone whether written, spoken, recorded or published. If we compare the use of information in the several spaces and how such can be sent to the different parts of the internet in a defamatory way which may be either a tort or crime of defamation even though it is causing reputational damage and the like it may not be the same as what misinformation and disinformation may mean. Although no mention of either disinformation or misinformation, a quick rundown of the CyberCrimes Act can reveal to us the sharing of non-consensual sexual explicit content, child pornography and the spreading of xenophobic/terrorist information on any platform will be a crime in the Nigerian jurisdiction.?

The Nigerian Broadcasting Code also encourages broadcasters to verify the information they broadcast in the Nigerian space, of course, this NITDA Code refers Journalists and Media Houses and forces them to work together with the internet intermediaries to enforce the code while verifying the information and qualifying such information as disinformation or misinformation. It must be noted that the Code is meant to comply with some of the stated laws above so it will mean that reading other laws and those stated in the Code is very important. As this is not a law-enforcing crime, the code has been made to ensure that all internet intermediaries comply with the criminal laws as well as other laws in the country. This article intends to investigate the meaning of the two words as used in the code and nothing else. As I have stated above, the meaning of a word as stated in the law is the meaning of the word to the exclusion of other meanings elsewhere, so looking at all these similarities does not change or affect what the code calls disinformation and misinformation.?

Since we have no specific mention of the two words in any of our extant laws, it will make legal sense to stay with the definition section of the Code itself and allow the code to explain itself. The definition or interpretation section of the law determines what the word means. As it is popularly said that the express mention of a thing is to the exclusion of others.

DISINFORMATION: According to the definition section of the code, the word disinformation means "verifiably false or misleading information that, cumulatively, is created, presented, and disseminated for economic gain or to deceive the public intentionally and that may cause public harm." The word misinformation means "the unintentional dissemination of false information."

Looking at the definition of disinformation, two striking terms differentiate it from the word misinformation. First, disinformation according to the code is information that is ‘verifiably false’ which means that the carrier of the information can clarify and has verified that the information is confirmed to be false and untrue. Such information is also ‘misleading’ a set of people. The intention behind the creation of such information must be to mislead, ‘disseminate for economic gain’, deceive the public and intentionally expect to cause public harm’. In other words, the information must be specifically created to do either of the three stated things vis a vis to bring gain to the carrier, deceive the public and cause public harm. In law, there are two elements to a crime or forbidden act, the action (actus reus) and the intention (mens rea). The definition provides for both. Actions consist of creating and presenting information that is misleading, verifiably false and can cause public harm and disseminating such information to the public. Intentions include a plan to make economic gain from misleading the public, an intention to cause public harm, and an intention to deceive the public generally. This means Disinformation is for the active wrongdoing where you intentionally do the wrong. The intention is active here which differentiates it from misinformation where the information is shared passively.

MISINFORMATION: Of course, it is not only actions that are punishable by the law, omissions are also punishable by the law, so a passive sharing of misleading information is one of the acts the code seeks to correct. According to the definition, the fact that you have no intention to mislead but you did disseminate the information makes your action different. So the lack of intention, the intention in it and of course the action is the dissemination of the misleading information whether verifiable or not. It must be stated that, unlike disinformation where the information is created here, the information is only shared, retweeted, reposted or regrammed or any word similar to the word disseminated on different platforms. So it does not matter whether the information has been verified or not so far as it is shared without intention or mischief and it is misleading ie enough. If I don't have intention why should it be a big deal, remember manslaughter is an action-based crime without intention too. I am not saying sharing misinformation is a crime according to the Code, this is just a near comparison to how action and intentions work as far as the law is concerned.

Following the above analysis, it is obvious that the similarity between the two words is the sharing of misleading information. The two striking differences are the creation of information and the intentions of the side of misinformation. This analysis is just to explain what the code means by disinformation and misinformation. It is important to note that the code seeks to promote a check and scrutiny framework for all internet intermediaries to remove and reduce to the barest minimum all disinformation and misinformation in the internet space. This is one of the main objectives of the code. The code seeks to mention some of the information tagged as disinformation including, amongst others, child pornography, non-consensual sexual, explicit and nude content, revenge porn etc. which the code seeks to compel the internet intermediaries to take down. The code did not create punishment for any of these acts but compelled the intermediaries to remove or block the user that posts such within 24 hours. Many have argued on how to determine the intention, as concerned with disinformation like non-consensual nude content and revenge porn. Will the platform wait for the non-consenting party to report the content before flagging it or flagging it when posted until proof is given that it is consensual or not revenge? If immediately explicit content is posted it is flagged or blocked which will mean that the code is trying to create a moral guard on Nigerians from watching explicit content. This is a topic for morality and the law jurisprudence not in the scope of this short piece.?

Finally, it may be necessary that the code contain a proper measure of what disinformation and misinformation mean and what procedure will be used to measure the intention which is the basic element of both disinformation and misinformation. Without this, anybody can be said to have intentionally done what they never intended to do. We must remember the law is meant for men, not the other way round and an unenforceable law may be dead on arrival. If enforceable and the procedure to measure the same is not well stated it may end up being a tyrannical code or law. We must remind ourselves that there is still freedom of information and such must not be draconically stifled in the name of public policy.