Balancing Hate Speech, Fake News and The Right to Freedom of Expression In Nigeria – Victoria Bassey

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One of the most recurrent themes bordering on Nigeria’s socio-political landscape has been the inherent conflict in striking a balance between the vexing issue of hate speech/fake news and the constitutional right of individuals to freedom of expression. This article is aimed at striking this balance.

Hate speech has been a challenge in Nigeria. If it has to do with the Nigeria Civil War, Igbo nationalists take offence with the rest of the country; if it is about Boko Haram and its alleged sponsors, self-appointed defenders of the North are up in arms with equally self-appointed defenders of the South; if it has to do with resource control and oil politics, the North squares off against the South.

HATE SPEECH is speech that attacks a person or group on the basis of attributes such as race, religion, ethnic origin, national origin, sex, disability, sexual orientation, or gender identity. In August 2017, Vice President Yemi Osinbajo said hate speech is tantamount to terrorism and would no longer be tolerated in Nigeria. Meanwhile, a new bill by the Nigerian senate has proposed that any person found guilty of any form of hate speech that results in the death of another person shall die by hanging upon conviction.

Fake news on the other hand became popular during the 2016 US elections and can be defined as false stories that appear to be news, spread on the internet or using other media, usually created to influence political views or as a joke.

Most recently, freedom of expression was introduced in chapter II, in respect of the Fundamental Objectives and Directive Principles of State Policy, particularly under section 22 of the Constitution of the Federal Republic of Nigeria, 1999, as amended, thus:

The press, radio, television and other agencies of the mass media shall at all times be free to uphold the fundamental objectives contained in the chapter and uphold the responsibility and accountability of the Government to the people.

Section 39 of the 1999 constitution has clearly emphasized full protection of every person who wishes to express his opinion and also receive and impart ideas and information. Section 39 also shows that the freedom of expression is a qualified right and therefore not absolute.

The right of Freedom of expression is no longer only a virtue in Nigeria. It has become a loophole exploited by tribe and ethnic cleansing advocates\fake news propagandists. Considerable amount of attention has also been given to these problems. On the 9th of January 2019, Nobel Laureate, Prof. Wole Soyinka, serving as a panelist at BBC News’ ‘Countering Fake News’ Symposium in Abuja said that fake news has become a threat to mankind, adding that it may cause ‘World War 3’.  At the same symposium, Vice President Yemi Osinbajo talked about the problems that fake news can cause even to marital peace. He says he once got a call from his wife who asked him what he was doing with strippers. (A blog falsely reported that he had been ‘caught’ with them.)

Fake news and Hate speech are threatening our already fragile national unity. The use of hate speech was predominant during the 2015 general elections campaign. For e.g, Katsina state Gov. Shema referred to his political opponents as cockroaches and urged his supporters to kill them as they kill cockroaches. Amidst the many controversies trailing the 2019 general elections, the issue of hate speech has been identified as one of the major causes of tension and national insecurity, which impede free and fair elections in Nigeria. This observation was part of a 10-point communique issued at the end of a one-day stakeholders’ pre-election dialogue and workshop held on January 13th 2019, in Abakaliki, Ebonyi State. Nigerians have also combated with agenda driven news since independence in 1960.

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The explosion of social media has significantly increased the problem. In 2018, the situation was made worse as a report by The Guardian says Cambridge Analytica; the embattled data analysis firm that reportedly used the personal data of 50 million Facebook members to plant Fake News in a bid to influence the US presidential election in 2016 was also involved in the Nigerian 2015 elections. The report states that Cambridge Analytica was hired by an unnamed Nigerian billionaire to work on the re-election campaign of then President Goodluck Jonathan. The data analysis firm “was paid an estimated ₤2 million to orchestrate a ferocious campaign” against Muhammadu Buhari, the leading opposition candidate at the time.

Fake News reached a crescendo during the national elections as seen from the wide spread of the “Jubril from Sudan” rumors that made rounds in Nigeria and around the world. The rumors were that the president had passed and was replaced by one “Jubril”, a Sudanese impostor. This news went viral and even eminent clerics like Pastor David Oyedepo, fell for it. Fake news most  times  instigates confusion,  tension, suicide  depending on the  person  or institution  on the  other  end  and  it undermines  serious  media  coverage  and  makes  it more  difficult  for  journalists  to  cover significant news stories. The British Broadcasting Corporation (BBC) has reported that fake news circulating in the social media is fueling the farmers/ herdsmen crises in Nigeria. In a heterogeneous and polarized country like Nigeria, hate speech threatens the nation-building process by widening the social distance among Nigerians, cementing existing distrust, and undermining national support. Hate speech can also negatively affect the economy. For instance, in the face of the quit notice given to the Igbos in northern Nigeria, some Igbo businessmen refused to entertain any credit request from customers, Igbos and non-Igbos alike, until after the October 1 deadline.

Fake news/freedom of expression 

Does our right to freedom of expression, as guaranteed by section 39(1) of the 1999 Constitution of the Federal Republic of Nigeria extend to people being able to spread fake news? The answer is a resounding no. Firstly, the right to free speech is certainly not without limits. Under section 39(3) of the 1999 Constitution of Nigeria, the right to freedom of expression could be restricted by a law reasonably justifiable in a democratic society, for the purpose of maintaining the authority and independence of the courts. Also, by virtue of section 45(1) of the 1999 Constitution, the right to freedom of expression and some other fundamental rights guaranteed in the constitution could be restricted or curtailed by any law that is reasonably justifiable in a democratic society: In the interest of defence, public safety, public order, public morality, public health or for the purpose of protecting the rights and freedom of other person.

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 From that analysis, it is clear that the right to freedom of expression does not mean the right to spread false news. The constitutional right to freedom of expression and the act of spreading fake news, are strange bedfellows due to overriding public interest. Spreading fake news on social media surely constitutes an ingredient of libel, which is a form of defamation. In Nigeria, defamation is both a tort and a crime. Though it appears that spreading fake news can be regarded as a limitation to the right to freedom of expression, it must be noted that the right to limit this freedom is not a blank cheque for dictators to terrorise the populace, hiding under the thin guise of subjective national interest.

Hate speech/freedom of expression 

When it comes to debates about free speech that needs to be protected and hate speech that needs to be legislated, the metaphor of “balancing” is constantly referenced. Two human rights are in conflict: the freedom to advocate distasteful opinions or to convey distorted or false information and the conflicting right not to be a victim of hate speech. One right is subordinate to the other. The balance metaphor, however can be justified If some speech on some occasions is restrained and on such occasion, the right to be free from hate speech is preferred to the freedom of expression principle. The search is for those circumstances and conditions in which one right should be preferred over the other. There is also a need to offer coherent justifications for which right is preferred in particular circumstances or else, from the stand-point of freedom of expression, there is a risk that limitation will encroach to the point where the right itself is threatened.

Presently, radio station presenters cut off or warn callers who perpetrate or intend to perpetrate hate speech on air. This is a result of the watchful eye of the NBC. The International Covenant on Civil and Political Rights (ICCPR) strives to protect free speech while regulating hate speech. Article 19(2) enshrines the right to freedom of expression, but also contains a clawback clause under subsection 3 which provides for the protection of national security or of public order, order publique, or of public health or morals.”. Article 20, on the other hand, addresses incitement in subsection 2, which states that any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility, or violence shall be prohibited by law. (see case of  J.R.T. & the W.G. party v. Canada, Ross v. Canada and Faurisson v. France).

The Role of the Courts in Balancing the Matters 

It is the duty of the court to ensure the protection of the fundamental rights of citizens, and, in appropriate cases, to balance the conflicting interests of the parties involved. This was confirmed in the case of Olawoyin v. Attorney-General of Northern Nigeria, where it was held that the courts have been appointed sentinels to watch over the fundamental rights secured to the people of Nigeria by the Constitution and to guard against any infringement of those rights. In balancing the conflicting interests between freedom of expression and the protection of the public from fake news and hate speech, the courts would normally proceed from the principle that the right to freedom of expression, being a fundamental human right, must be given preferential protective consideration; and any claim to its restriction or derogation, must be construed strictly.

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Recommendations 

The pedagogic import of the folklore of Father tortoise and his three youngsters should not be lost to fellow Nigerians. Just as Father tortoise in the folklore had asked his kids how many times they would allow a bad incident to happen to them before they would take caution, the time for us to ask ourselves a similar question has come! Today, one major social challenge Nigeria faces has become the increasing challenge of what has been dubbed ‘hate speech’! Under the canopy of ‘freedom of speech’, ‘right to opinion’ and access to the ubiquitous social media, some misguided Nigerians have taken to the gallery, dishing out what would do more harm to Nigeria and Nigerians: vicious, derogatory and even inciting attacks on individuals, ethnic groups or even entire regions! The grave impact hate speeches and fake news have had on other countries like America, Liberia, Sierra Leone, Rwanda and Serbia, among others, is too glaring for us to ignore, and something needs to be done.

In the light of all this, here are a few recommendations that are needful.

  1. Conventions

Conventions and agreements between nations to regulate the social media.Social media is under multi-jurisdictional regulation, necessitating more collaboration among nations to regulate them. 

  1. Education

The state should strengthen the provision of human rights education in schools, including adequate reflection in standard school curricula and training of teachers and that efforts to prevent and combat prejudices and to promote understanding and tolerance in all spheres of life be continued, aimed particularly at young people and the media.

  1. Amend the Criminal Code 

A provision should be inserted into the Criminal Code making racist motivation an aggravating circumstance for all criminal offences.

  1. Proactive Government 

Government agencies need to be proactive in releasing information to avoid speculations and the chances of fake news gaining ascendancy will be reduced.

  1. Journalists Should Shun ‘Copy and Paste’ 
  1. Media Literacy 

 Media literacy is important as more and more Nigerians can easily access the internet. People need to be skeptical and ask themselves certain questions when they come across some content in order to discern false news.

Victoria Bassey, is a graduate of Law from the University of Calabar (vykea77@gmail.com)

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