Internet Platform Regulation in Nigeria: Intermediary Liability and Publisher Immunity

The third challenge for internet platforms in Nigeria relates to intermediary liability. In Nigeria, publisher immunity does not enjoy the kind of clear statutory protection that internet platforms are familiar with in the United States. Multiple agencies of government have introduced regulatory instruments which all have implications for intermediary liability and seek, in different ways, to impose duties on or provide conditional protection to internet platforms and intermediaries. NITDA's Code of Practice for Interactive Computer Service Platforms and Internet Intermediaries, for example, imposes obligations on platforms concerning unlawful content, complaints, government requests and due diligence. The regulatory approach is expressly framed around a degree of co-regulation between government and platforms. Nonetheless, this area of Nigerian law has received relatively little judicial consideration and the boundaries of the protection remain uncertain.

In Femi Falana v. Meta Platforms Inc., the issue came before the Lagos State High Court in a particularly interesting context. A third party had posted a video on Facebook which falsely suggested that Mr Falana suffered from a medical condition. Meta argued that it was an intermediary, that it did not create or post the video, and that it removed the video after becoming aware of it.

The Court nevertheless held Meta liable, finding that Meta had breached Mr Falana's constitutional right to privacy and section 24 of the Nigeria Data Protection Act. The Court also found that Meta had a duty concerning the accuracy and integrity of publications posted by third parties on its platform.

In the United States, an American platform would ordinarily begin the analysis with section 230 of the Communications Decency Act. Section 230 provides that an interactive computer service shall not be treated as the publisher or speaker of information provided by another information-content provider. It also contains a separate protection for certain good-faith efforts to restrict access to objectionable material. Thus, the starting assumption in the United States is therefore that a platform does not become the publisher of third-party content merely because the content is hosted on its service. Nigeria does not currently have an equivalent statutory safe harbour of comparable breadth.

In Nigeria, the absence of a comparable statutory safe harbour means that the platform's exposure to third-party content has to be analysed under Nigerian law. Thus, an American platform entering Nigeria should not assume that the protections it enjoys under section 230 will travel with its business model. Without a sufficiently clear defence strategy, an internet platform may potentially find itself defending claims arising from content created by its users, including claims for defamation, privacy violations and other civil wrongs.

Key Takeaways

The judicial decisions in these areas are early and, in some instances, raise more questions than they answer. In total, they raise important questions about the correct application of constitutional and data protection principles to internet platforms. Some of these decisions appear to extend established principles beyond their traditional application. In other instances, there appears to have been limited evaluation of the facts, the nature of the platform's role or the distinction between the platform and the person responsible for the underlying conduct.

For internet platforms, this means that the way in which a case is presented to the court can be particularly important. If the court is presented with an internet platform simply as another company to which traditional legal principles apply, without sufficient explanation of how the platform operates, the role it plays in relation to its users and the technological realities of the service, there is a risk that traditional principles will be applied without sufficient consideration of the peculiar nature of internet platforms.