Nigeria’s Proposed Internet & Social Media Regulation: Key Takeways

Internet and social media regulation in Nigeria is taking a new shape. Following converging global trends in internet regulation, Nigeria has recently published a draft of its proposed social media laws affecting internet and social media companies available to users in Nigeria.

There are important thematic similarities between the proposed regulation and the proposed H.B. No. 20 in Texas, the European Digital Services Act, the UK Online Safety Bill, and the Indian Intermediary Rules.

Although the proposed social media law is entitled a “code of practice”, suggesting that social media companies need to sign up to the code of practice for legal effect, there is language in the proposed social media law that makes certain that the code of practice is intended to be legally binding, without further recourse to social media companies.

A copy of the proposed internet regulation is available here

The key themes of Nigeria’s proposed internet regulation revolve around:

• Unlawful Content

• Content moderation

• Anonymity

• Misinformation

• Harmful Content

• Disinformation

• Compliance with Nigerian Law

• Incorporation in Nigeria & Appointment of a Liaison Officer

• Prohibited Materials

• Assistance of the government in criminal investigations

• Resolution of User Complaints

• Removal or censorship of unlawful content

• Mandatory verification of government accounts

• Minimum standards for Terms of Use

• Protection of children

• Online Harm

• Preservation of records

• Filing an Annual Compliance Report

Key Takeaways

1. Nigeria’s proposed internet & social media law is not an act of the parliament but a set of rules published by Nigeria’s information technology regulator (the “NITDA”). The rules are still a draft and therefore do not have the force of law, leaving room for engagement by industry

2. Nigeria’s proposed internet & social media law does not contain any new protections for social media companies. Nigeria has no legal or regulatory construct similar to Section 230 (c) (1) & (2) of the Communications Decency Act, with the implication that providers of interactive computer services (“Platforms”) will likely be treated by Nigerian courts as “publishers”, for purposes of liability. Platforms can also be held fully liable for third-party/user-generated content posted on their platforms.

3. Social media companies are not classified as “common carriers” under Nigeria’s social media rules, and there is no prohibition against the censorship of users’ content based on the views of a user.

4. A variety of laws are applicable to social media platforms in Nigeria. For instance, whilst the Nigerian Broadcasting Commission (NBC) broadly regulates broadcast content, the NITDA may also broadly regulate social media and internet companies as a type of information technology platform. To the extent that a platform’s activities involve the publication of public-facing content or the exercise of editorial discretion over user-generated content, both NITDA and NBC would have some level of regulatory oversight over the activities of social media platforms. Similarly, advertising, tax, and consumer protection regulators would also have regulatory oversight.

5. There is a clear intention by Nigeria to regulate social media & internet companies, following regulatory trends in the UK, America, India & the US. It is therefore important for Platforms to strategically engage regulators towards ensuring a final version that reflects industry practice and a greater balance between freedom of speech and public interest.

We believe that there are a number of issues that require further engagement and clarification, some of which include:

• The need to review the definition of Large Service Platforms (LSPs), currently defined as platforms whose users are more than 100,000. Amongst other requirements, LSPs are required to set up a subsidiary and appoint a liaison officer.

• The need to streamline social media regulations across regulators

• The need to streamline the definition of “interactive computer service platforms”

• The need for legal protection for third-party user-generated content

• The need to review the obligation to file annual reports

• Mandatory local incorporation

• Clarification of the scope of intermediary liability. For instance, the proposed social media law provides that a platform will not be "liable" where a platform takes all reasonable steps to “take down” unlawful content.

We would continue to monitor policy and regulatory developments in this area. For legal opinions or enquiries, please reach out to your usual Balogun Harold contact or via support@balogunharold.com