Nigeria: The Man Behind The Keyboard

Last Updated: 14 February 2019
Article by ICT Group

Man's desire for 'storytelling' is innate. Newspapers, telephones, radios, etc. have all served at different times as the preferred mode of communicating ideas to broadly dispersed audiences. However, from 1990 when the internet in its near current form was birthed, man's ability to disseminate information has been revolutionised so that it is now possible to pass messages across to millions and potentially billions of individuals in a second with a simple click. With great power comes great responsibility. But who exactly bears this responsibility?

Social media platforms like Facebook, Twitter, and LinkedIn allow people to search, find and communicate with millions of people worldwide. Using social media does not require any special training, nor is there a vetting agency that monitors and approves content posted on these sites. This means that people can publish with little or no restriction, contents of any kind including abusive, offensive or defamatory publications. The more sensational the publication or 'post', the more 'likes' or views it is prone to receive. Posts targeting ordinary people and celebrities alike as rapists, fraudsters, etc. go viral within hours and the affected parties are tried and declared guilty by the "social media courts" without any independent verification of the source of the information. When many of these accusations eventually turn out to be false, by that point, the reputational or commercial damage has already been done.

Ordinarily, where the identity of a person who publishes defamatory or harmful content is known, a court action could be filed, or threatened, against the alleged offender for damages. The anonymity of the internet however creates room for the use of anonymous social media accounts as instruments for the publication of defamatory content. In such cases, the ability of an affected person to seek legal remedy may prove difficult. That is unless the law permits him to obtain his remedy against the media platform itself for the publication of defamatory content.

Some litigants in Nigeria have successfully sued newspapers for the publication of defamatory content (libel) and the court has awarded damages in their favour. It is not so clear if such remedy is available against social media platforms. While newspaper publishers make their living by assuming responsibility for the veracity of the news content they report, there is no such responsibility, assumed or explicit, when it comes to social media. Not only is there limited control over publications (posts), but most social media platforms have "Terms of Use" policies - usually accepted without review by users - indemnifying the platform against any wrongdoing on their platform. For instance, Clause 4(4) of Facebook Terms of Service states "We do not control or direct what people and others do or say, and we are not responsible for their actions or conduct (whether online or offline) or any content they share (including offensive, inappropriate, obscene, unlawful, and other objectionable content)." While Facebook goes on to provide procedures for the reporting and removal of harmful or defamatory posts, regrettably this provides no remedy for the aggrieved person whose reputation or business has been damaged.

In view of the above, Nigerian courts may need to innovate in order to provide a way out for those affected by harmful social media content. One option would be for them to follow the decision in one landmark English case (Norwich Pharmacal Co. and others v Customs and Excise Commissioners [1974] AC 133.). Here, a case was brought against defendants, where the defendants only connection to the case was that they were in possession of information relating to those who were alleged by the plaintiff to have violated his rights. The Court held that even though the defendant innocently became mixed up in the wrongful acts committed by third parties, it (the defendant) was under a duty to assist in discovering the identity of the third-party wrongdoers. This kind of court order - a Norwich Pharmacal Order - is usually granted where the identity of a wrongdoer is unknown, but the party being sued is in possession of the information and identity of the wrongdoers. The case for this kind of order is especially strong where the innocent third party is the only practicable source of information.

In a more recent case in the UK (Applause Store Productions Ltd and another v Raphael [2008] EWHC 1781 (QB)) some unknown individuals had set up a 'fake' Facebook page which contained defamatory material against one of the claimants. In order to discover the perpetrators behind the defamatory publication, the claimants, through their solicitors obtained a Norwich Pharmacal Order against Facebook Inc. for disclosure of the registration data provided by the user responsible for creating the false material, including e-mail addresses, and the IP addresses of all computers used to access Facebook by the owner(s) of those email addresses. In compliance, Facebook provided all the aforesaid information, following which the claimants instituted and succeeded in in a court action against the individuals responsible for the libelous publication.

Most digital and social media platforms seem to operate under the apprehension that the courts may order them at any time to take certain steps to help users seek redress against those who would infringe upon their rights under the guise of anonymity. They categorically state in their terms of service that, where the law requires them to do so, they are obligated to share data/information in response/compliance to legal requests such as court orders, subpoenas or search warrants. Facebook's terms of service for instance states that the information it receives about users (including financial transaction data related to purchases made with Facebook) can be accessed and preserved for an extended period when it is the subject of a legal request or obligation, governmental investigation, or investigations of possible violations of its terms or policies, or otherwise to prevent harm.

For the time being however in Nigeria, at least until tested in court, the anonymity of "the man behind the keyboard" in the context of libel on social media and other internet-based platforms, is real. This poses major setbacks to the enforcement of the legal rights of persons wrongly harmed by content posted on social media. Whilst there is presently no known case law in Nigeria where an order like the Norwich Pharmacal order has been granted, it is hopeful that if the opportunity presents itself, Nigerian Courts will consider a similar "Order of Discovery" which will help to address the widespread use of anonymous accounts to publish defamatory content on social media platforms.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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