The Digital Rights and Freedom Bill: The Leap and the Hurdles

By August 3, 2016ICT Policy

 By Adeboye Adegoke and Tomiwa Ilori

One of the most basic means through which the citizens have been able to meaningfully participate in governance in democracies has been through guarantee of human rights. Even though with Nigeria’s chequered history on respect for human rights, the past sixteen years of Nigeria’s democratic rule have shown a fair degree of promise for respect for human rights in the Nigerian socio-political space. This promise needs to be consolidated upon. With the advent of disruptive social media tools, the need for understanding human rights within the context of emerging innovative technologies has become a necessity hence the reason for seeking for codification of rules into a legislative framework became necessary. The Digital Rights and Freedom Bill (HB.490) is a draft piece of legislation currently on the floor of the House of Representatives which seeks to guarantee these emerging innovative technologies within the context of human rights in Nigeria – it is an amplification of fundamental human rights as provided for in the 1999 Constitution of the Federal Republic of Nigeria (as amended) being extended to the online space in Nigeria. The Bill is a potpourri of conventional rights with respect to sanitizing the online space with a rights-inclusive legislation.

The Bill is the first draft legislation that directly speaks to the challenges of respect for human rights online in Nigeria and by extension in Africa. The Bill is the second of its kind globally, after the “Marco Civil” passed by the Brazilian legislature and Italy Internet Bill of Rights. The Bill has twenty-two sections which are divided into seven parts. Each of the parts deals with Preliminary, Fundamental Right and Freedoms, Offences and Penalties, Administration and Enforcement, Jurisdictional and International Co-operation, Enforcement of Victims’ Rights and Miscellaneous.

The Preliminary part deals with the main objectives of the Bill. One of the major aspects the Bill is concerned with is the promotion of freedoms of expression, assembly and association online; guarantee the fundamental privacy rights of citizens and define the legal framework regarding surveillance; clearly outline provision for lawful and authorized interception of communications within the digital environment while balancing this out with the rights of the citizens to communicate freely; accord data privacy more priority and thus safeguarding citizens’ data being held by government and private institutions; guarantee application of the human rights which apply offline within the digital environment and online and a host of other goals.

The second part of the Bill provides directly with fundamental rights and freedoms online in Nigeria. The right to digital privacy of every Nigerian is protected under this Bill. The online presence of every Nigerian is protected and no undue interference with every Nigerian’s privacy shall be allowed. This goes to safeguarding the privacy of every individual. Also, the Bill protects the data and information privacy of every Nigerian. Any entity that holds the data of any Nigerian, including data in the cloud is made accountable to such citizen by virtue of the provisions of this Bill. This Bill recognizes the need to own personal data like a personal property and to understand the importance of personal data in today’s world of digital disruption. Also, with the menace of online impersonation in vogue these days, the Bill strongly proscribes the holding of personal information of any Nigerian without proper authorization. Also, the provision of the Nigerian Constitution, Section 37 succinctly guarantees the right to privacy of every Nigerian and this directly correlates with the safeguarding the rights of Nigerians against unauthorized surveillance and unlawful interception of communication from any entity. The issue of surveillance and unlawful interception globally has continued to oscillate between the rights of citizens to privacy and that of the government to provide security. The Bill amply provides for the balance the government must ensure in order to be able to safeguard rights of the citizen and ensure the security of every Nigerian.

Another key topical issue the Bill addresses is the safeguard of freedom of expression online. There has been recent attempt at limiting free speech online as evidenced by section 24 of the Cybercrime Act 2015 and the now defunct Frivolous Petition Bill popularly known as “Anti Social Media Bill”. There is no better time than now to emphasize the need for safeguard of freedom to hold opinion and freedom to express such opinions using digital platforms as provided for by Section 39 of the Nigerian 1999 constitution as amended. It is also important to note that the Digital Rights and Freedom Bill directly antagonize any attempt to limit free speech under any guise. The Bill apart from being a regulatory framework for extreme cases that may warrant need for limit of free speech is as well mindful of potential use of frivolous and ambiguous definition by entities, especially the Government and Security agencies to clampdown on Citizens for example using terms such as “hate speech”. The Bill clearly states that “…concerns about hate speech shall not be abused to discourage citizens from engaging in legitimate democratic debate on matters of general interest” It states further that “It shall be the duty of the courts to make a distinction between, on the one hand, genuine and serious incitement to extremism and, on the other hand, the right of individuals (including journalists and politicians) to express their views freely and to ―offend, shock or disturb as a way of combating certain forms and expressions of hate speech” (Section 13 (15,16))

The right to anonymity as provided for by section 4 of the Bill will provide a cover for whistle blowers. Whistle blowers play critical roles in any system. Individuals who have seen ills, injustice and corruption in the system should feel a sense of protection as they expose such ills. The Digital rights and freedom Bill seeks to offer such protection. Section 4(2) states that “Every person shall have the right to express themselves anonymously online and shall not be compelled to adopt real name registration system” The same section further asserts in subsection 3 that “Internet Service Providers shall uphold and respect the human rights of customers by supporting the exercise of anonymous speech”

However, as noble as it seems, getting the Digital Rights and Freedom Bill to the current legislative stage has in itself been fraught with a lot of challenges, and greater challenges even lie ahead for the Bill to become Law. The Bill now needs strong collaborative effort especially from those whose work directly affected by the openness of the digital space. There is a need to guide against misinterpretation of the intent of the Bill as a Bill seeking to gag free speech as it was ignorantly reported in some dailies and blogs after the Bill passed second reading at the House of Representatives. Getting the media narrative right is very important, so mischief makers don’t successfully turn citizens, who the Bill are meant to protect, against the passage of the Bill.

Also, members of the National Assembly must see the Bill beyond the mindset of getting protected from criticism from the populace particularly on digital platforms. Political leaders must realize that we are all citizens, and political power or positions are never permanent. Therefore, passing the Digital Rights and Freedom Bill into Law is in the interest of all, including Honorable members and Distinguished Senators.

In addition, security agencies now need to understand the need to always respect regulatory frameworks and not blackmail the Bill as a threat to ‘National Security’. National Security is one term that has been used severally to abuse rights and the definition of the term has remained vague over the time. The term has been a ready instrument for the violation of human rights over time. There is no doubt about the fact that the greatest culprit as regards the violation of rights, be it data privacy rights or freedom of expression are the various security agencies under the guise of conducting investigation and over ‘national security’ concerns. Several Governors in Nigeria have also been reported to have engaged in illegal surveillance and communication interception programs, acquiring latest tracking technology that allows them decrypt telephone calls made over 3G networks in real time. It is important to caution that those who have freely carried out surveillance activities unchecked may be inclined to antagonize a Bill that seeks to address such illegal and unlawful activities. This paranoia is however not necessary because, and as it has been stated in the preceding paragraph “we are all citizens” in the end, so when the table turns against you, you can be assured of protection from infringements of your rights.

Finally, the right thing has to be done; the need to protect the constitutionally guaranteed rights of citizens cannot be overemphasized. It is in the interest of everyone, whether you are a political actor, security agency, private individuals, civil society actors, business men etc. for the Digital Rights and Freedom Bill to become law. In an ever changing world, especially in the political and business sphere, a positive right law such as the Digital Rights and Freedom Bill will ensure fairness and justice to all of the people, all of the time irrespective of the vagaries of the space. The Bill when passed into Law will provide an avenue to seek redress for digital rights violation. It eliminates the fear to participate in the digital space. Participation in the digital space brings the people closer to the Government and to opportunities that abound in online resources.

 

Adeboye Adegoke  @adeboyeBGO is  Program Manager(ICT Policy), Paradigm Initiative Nigeria

Tomiwa Ilori is Program Assistant (ICT Policy) Paradigm Initiative Nigeria

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