By Oyetola Muyiwa Atoyebi, SAN, FCIArb. (UK).
INTRODUCTION
On the 13th day of June, 2022, the National Information and Technology Development Agency issued a proposed code of practice for the regulation of interactive computer service platforms/internet intermediaries. The proposed regulations were formulated with the input of relevant stakeholders from internet service platforms like Facebook, Twitter, WhatsApp, and Instagram on the instruction of the President of the Federal Republic of Nigeria.
The proposed code of practice is essentially aimed at defining guidelines for interactions in the digital space, and further protecting the digital rights of all citizens of the Federal Republic of Nigeria, and by extension, foreigners that are domiciled in Nigeria.
It is believed that this code of practice will lay to rest issues surrounding the use of the internet and other digital service platforms in Nigeria. This article therefore seeks to look at the legal issues surrounding the new code of practice for interactive computer service platforms, issued by the National Information and Technology Development Agency.[1]
POWERS OF NITDA TO MAKE REGULATIONS
The National Information and Technology Development Agency is a creation of Section 1 of the NITDA Act, 2007. The Agency is a body corporate with perpetual succession, and a common seal and may sue and be sued in its corporate name. The Agency is primarily created to regulate the use of interactive computer service platforms in Nigeria.
The function that relates to the making of guidelines to regulate the use of the internet and other digital platforms, is particularly provided for in Section 1 paragraph (b-e) of the NITDA Act, 2007 and same is reproduced below for ease of reference as follows:
“(b) Provide guidelines to facilitate the establishment and maintenance of appropriate for information technology and systems application and development in Nigeria for public and private sectors, urban-rural development, the economy and the government;
(c) Develop guidelines for electronic governance and monitor the use of electronic data interchange and other forms of electronic communication transactions as an alternative to paper-based methods in government, commerce, education, the private and public sectors, labour, and other fields, where the use of electronic communication may improve the exchange of data and information;
(d) Develop guidelines for the networking of public and private sector establishment;
(e) Develop guidelines for the standardization and certification of Information Technology Escrow Source Code and Object Code Domiciliation, Application and Delivery Systems in Nigeria;”
The above provision of the NITDA Act, 2017, clearly shows that the Agency is fully empowered to make guidelines that will regulate the information technology systems in Nigeria. It is pursuant to the above provision, that the Agency has made the new code of practice to properly regulate the use of interactive computer service platforms.
NOTABLE PROVISIONS OF THE CODE OF PRACTICE
The Code of Practice has plethora of provisions ranging from responsibilities of interactive service platforms, to special provisions for large service platforms, and prohibited materials for all interactive service platforms. The Code of Practice also provides for procedure for amendments, and the measures to be taken where any Interactive Service Platform violates the Code of Practice.
We shall now highlight and expatiate some of these provisions mentioned above as thus:
Responsibilities of Interactive Service Platforms Internet Service Providers (ISPs) are mandated under the Code of Practice to abide by Nigerian Laws, and should not alter their platforms to undermine the enforcement of the law in any way form or manner.[2]
ISPs are also mandated to provide necessary information of any user, without hesitation upon the receipt of any Court Order in a bid to assist the Agency in tracking down users that have violated the provisions of the Code.[3]
They are also mandated to swiftly remove any explicit content that exposes the nudes of a person with the clear intent to harass and intimidate anyone.[4]
They are to provide avenues for government Agencies and individual users, to be able to lodge complaints where it is perceived that a breach of the Code of Practice has occurred.
They are also mandated to publish the rules for the usage of its platform on its website, which shall be written in clear and simple language to enable users understand what is expected of them.[5]
The Code of Practice provides for the filing of annual compliance report by ISPs. The report is to contain the number of active registered users, number of deactivated accounts, number of contents that has been removed from its platform as a result such content offending the Code of Practice. The report in summary is expected to contain a concise statement of compliance with all the provisions of the Code of Practice.[6]
Responsibilities of Large Service Platforms Before a proper dive is taken into the responsibilities of large service Platforms, it is pertinent to understand what large service platforms entail. Large Service Platforms in simplicita, entails platforms whose users are more than one hundred thousand. Their responsibilities are delineated as thus:
They shall be duly registered with the Corporate Affairs Commission and shall have a physical address situate in Nigeria. They are also mandated by the Code of Practice to have necessary human supervision in their offices, and shall appoint a liaison officer whom shall carry out the duties for and on behalf of the Platform. It also provides that a platform whose users are less than one hundred may also abide by the provisions, for large service platforms where the Agency thinks it is expedient for national security.[7]
Prohibited Materials ISPs are mandated not to keep prohibited materials that is against public security, morality, peace and order that is not in conformity with extant laws of the Federal Republic of Nigeria on its platforms, where it has been informed of such prohibited content. ISPs are enjoined to remove such prohibited content from its platform within 24 hours of such request to do so from the Agency.[8]
Measures on Disinformation and Misinformation Disinformation deals with the deliberate use of wrong information with the intention to deceive a person or people while Misinformation deals with incorrect information that is misleading.
To this end, ISPs have also been mandated to acquaint themselves with indigenous issues that usually leads to disinformation and misinformation in Nigeria.
They have been enjoined to collaborate with indigenous media Houses and other relevant agencies to conduct campaigns on the dangers of spreading incorrect information.[9]
Miscellaneous The first provision under this heading is on how the Code of Practice can be amended. It provides that the Code of Practice can only be amended by the Agency from time to time.
It further prescribed disciplinary measures for breach of the Code of practice which shall be done in accordance with the Civil Service Rules, and further prescribed prosecution and conviction for violation of the NITDA Act, 2007.[10]
CONCLUSION
The proposed Code of Practice for ISPs is a welcome development even though it has not been embraced with open arms by users of various platforms. Notwithstanding the fact that some of the provisions in the Code of Practice are quite extreme, and adapting same in our clime may pose some difficulties, users should still see the positives of the Code of practice, as it will finally put an end to so many issues of bullying in the digital space.
Users of Internet Service Platforms can now be guaranteed of measures that have been clearly defined by the Code of Practice, to help curb internet irregularities, posting of unauthorized contents and so on.
AUTHOR: Oyetola Muyiwa Atoyebi, SAN, FCIArb. (UK).
Mr. Oyetola Muyiwa Atoyebi, SAN is the Managing Partner of O. M. Atoyebi, S.A.N & Partners (OMAPLEX Law Firm) where he doubles as the Team Lead of the Firm’s Emerging Areas of Law Practice.
Mr. Atoyebi has expertise in Technology, Media and Telecommunications Law and this has seen him advise and represent his vast clientele in a myriad of high level transactions. He holds the honour of being the youngest lawyer in Nigeria’s history to be conferred with the rank of a Senior Advocate of Nigeria.
He can be reached at atoyebi@omaplex.com.ng
CONTRIBUTOR: Emmanuel Sogo.
Emmanuel is a member of the Dispute Resolution Team OMAPLEX Law Firm. He also holds commendable legal expertise in Technology Law.
He can be reached at emmanuel.sogo@omaplex.com.ng.
[1] Adeyemi Adepetun, ‘NITDA unveils code of practice to sanitise online platforms’ <https://guardian.ng/news/nitda-unveils-code-of-practice-to-sanitise-online-platforms/> (2022) Accessed 16 June, 2022.
[2] Part 1(1) of the NITDA Code of Practice (Draft)
[3] Part 1(2) of the NITDA Code of Practice (Draft)
[4] Part 1(4) of the NITDA Code of Practice (Draft)
[5] Part 2(1) of the NITDA Code of Practice (Draft)
[6] Part 2(9) of the NITDA Code of Practice (Draft)
[7] Part 3 of the NITDA Code of Practice (Draft)
[8] Part 4 of the NITDA Code of Practice (Draft)
[9] Part 5 of the NITDA Code of Practice (Draft)
[10] Part 6 of the NITDA Code of Practice (Draft)