Balancing Hate Speech, Fake News And The Right To Freedom Of Expression In Nigeria By Victoria Bassey

One of the most recurrent themes bordering on Nigeria’s
socio-political landscape has been the inherent conflict in
striking a balance between the vexing issue of hate speech/fake
news and the constitutional right of individuals to freedom of
expression. This article is aimed at striking this balance.

Hate speech has been a challenge in Nigeria. If it has to do
with the Nigeria Civil War, Igbo nationalists take offence with the
rest of the country; if it is about Boko Haram and its alleged
sponsors, self-appointed defenders of the North are up in arms with
equally self-appointed defenders of the South; if it has to do with
resource control and oil politics, the North squares off against
the South.

HATE SPEECH is speech that attacks a person or group on the
basis of attributes such as race, religion, ethnic origin, national
origin, sex, disability, sexual orientation, or gender identity. In
August 2017, Vice President Yemi Osinbajo said hate speech is
tantamount to terrorism and would no longer be tolerated in
Nigeria. Meanwhile, a new bill by the Nigerian senate has proposed
that any person found guilty of any form of hate speech that
results in the death of another person shall die by hanging upon
conviction.

 Fake news on the other hand became popular
during the 2016 US elections and can be defined as false stories
that appear to be news, spread on the internet or using other
media, usually created to influence political views or as a
joke.

Most recently, freedom of expression was introduced in chapter
II, in respect of the Fundamental Objectives and Directive
Principles of State Policy, particularly under section 22 of the
Constitution of the Federal Republic of Nigeria, 1999, as amended,
thus:

The press, radio, television and other agencies of the mass
media shall at all times be free to uphold the fundamental
objectives contained in the chapter and uphold the responsibility
and accountability of the Government to the people.

Section 39 of the 1999 constitution has clearly emphasized full
protection of every person who wishes to express his opinion and
also receive and impart ideas and information. Section 39 also
shows that the freedom of expression is a qualified right and
therefore not absolute.

The right of Freedom of expression is no longer only a virtue in
Nigeria. It has become a loophole exploited by tribe and ethnic
cleansing advocates\fake news propagandists. Considerable amount of
attention has also been given to these problems. On the
9^th of January 2019, Nobel Laureate, Prof. Wole Soyinka,
serving as a panelist at BBC News’ ‘Countering Fake News’ Symposium
in Abuja said that fake news has become a threat to mankind, adding
that it may cause ‘World War 3’.  At the same symposium, Vice
President Yemi Osinbajo talked about the problems that fake news
can cause even to marital peace. He says he once got a call from
his wife who asked him what he was doing with strippers. (A blog
falsely reported that he had been ‘caught’ with them.)

Fake news and Hate speech are threatening our already fragile
national unity. The use of hate speech was predominant during the
2015 general elections campaign. For e.g, Katsina state Gov. Shema
referred to his political opponents as cockroaches and urged his
supporters to kill them as they kill cockroaches. Amidst the many
controversies trailing the 2019 general elections, the issue of
hate speech has been identified as one of the major causes of
tension and national insecurity, which impede free and fair
elections in Nigeria. This observation was part of a 10-point
communique issued at the end of a one-day stakeholders’
pre-election dialogue and workshop held on January 13^th
2019, in Abakaliki, Ebonyi State. Nigerians have also combated with
agenda driven news since independence in 1960.

The explosion of social media has significantly increased the
problem. In 2018, the situation was made worse as a report by The
Guardian says Cambridge Analytica; the embattled data analysis firm
that reportedly used the personal data of 50 million Facebook
members to plant Fake News in a bid to influence the US
presidential election in 2016 was also involved in the Nigerian
2015 elections. The report states that Cambridge Analytica was
hired by an unnamed Nigerian billionaire to work on the re-election
campaign of then President Goodluck Jonathan. The data analysis
firm “was paid an estimated ₤2 million to orchestrate a ferocious
campaign” against Muhammadu Buhari, the leading opposition
candidate at the time.

Fake News reached a crescendo during the national elections as
seen from the wide spread of the “Jubril from Sudan” rumors that
made rounds in Nigeria and around the world. The rumors were that
the president had passed and was replaced by one “Jubril”, a
Sudanese impostor. This news went viral and even eminent clerics
like Pastor David Oyedepo, fell for it. Fake news most 
times  instigates confusion,  tension, suicide 
depending on the  person  or institution  on
the  other  end  and  it undermines 
serious  media  coverage  and  makes  it
more  difficult  for  journalists  to 
cover significant news stories. The British Broadcasting
Corporation (BBC) has reported that fake news circulating in the
social media is fueling the farmers/ herdsmen crises in Nigeria. In
a heterogeneous and polarized country like Nigeria, hate speech
threatens the nation-building process by widening the social
distance among Nigerians, cementing existing distrust, and
undermining national support. Hate speech can also negatively
affect the economy. For instance, in the face of the quit notice
given to the Igbos in northern Nigeria, some Igbo businessmen
refused to entertain any credit request from customers, Igbos
and non-Igbos alike, until after the October 1 deadline.

Fake news/freedom of expression

Does our right to freedom of expression, as guaranteed by
section 39(1) of the 1999 Constitution of the Federal Republic of
Nigeria extend to people being able to spread fake news? The answer
is a resounding no. Firstly, the right to free speech is certainly
not without limits. Under section 39(3) of the 1999 Constitution of
Nigeria, the right to freedom of expression could be restricted by
a law reasonably justifiable in a democratic society, for the
purpose of maintaining the authority and independence of the
courts. Also, by virtue of section 45(1) of the 1999 Constitution,
the right to freedom of expression and some other fundamental
rights guaranteed in the constitution could be restricted or
curtailed by any law that is reasonably justifiable in a democratic
society: In the interest of defence, public safety, public order,
public morality, public health or for the purpose of protecting the
rights and freedom of other person.

From that analysis, it is clear that the right to freedom of
expression does not mean the right to spread false news. The
constitutional right to freedom of expression and the act of
spreading fake news, are strange bedfellows due to overriding
public interest. Spreading fake news on social media surely
constitutes an ingredient of libel, which is a form of defamation.
In Nigeria, defamation is both a tort and a crime. Though it
appears that spreading fake news can be regarded as a limitation to
the right to freedom of expression, it must be noted that the right
to limit this freedom is not a blank cheque for dictators to
terrorise the populace, hiding under the thin guise of subjective
national interest.

Hate speech/freedom of expression

When it comes to debates about free speech that needs to be
protected and hate speech that needs to be legislated, the metaphor
of “balancing” is constantly referenced. Two human rights are in
conflict: the freedom to advocate distasteful opinions or to convey
distorted or false information and the conflicting right not to be
a victim of hate speech. One right is subordinate to the other. The
balance metaphor, however can be justified If some speech on some
occasions is restrained and on such occasion, the right to be free
from hate speech is preferred to the freedom of expression
principle. The search is for those circumstances and conditions in
which one right should be preferred over the other. There is also a
need to offer coherent justifications for which right is preferred
in particular circumstances or else, from the stand-point of
freedom of expression, there is a risk that limitation will
encroach to the point where the right itself is threatened.

Presently, radio station presenters cut off or warn callers who
perpetrate or intend to perpetrate hate speech on air. This is a
result of the watchful eye of the NBC. The International Covenant
on Civil and Political Rights (ICCPR) strives to protect free
speech while regulating hate speech. Article 19(2) enshrines the
right to freedom of expression, but also contains a clawback clause
under subsection 3 which provides for the protection of national
security or of public order, order publique, or of public health or
morals.”. Article 20, on the other hand, addresses incitement in
subsection 2, which states that any advocacy of national, racial or
religious hatred that constitutes incitement to discrimination,
hostility, or violence shall be prohibited by law. (see case of
 J.R.T. & the W.G. party v. Canada, Ross v.
Canada and Faurisson v. France)

The Role of the Courts in Balancing the
Matters

It is the duty of the court to ensure the protection of the
fundamental rights of citizens, and, in appropriate cases, to
balance the conflicting interests of the parties involved. This was
confirmed in the case of Olawoyin v. Attorney-General of
Northern Nigeria, where it was held that the courts have been
appointed sentinels to watch over the fundamental rights secured to
the people of Nigeria by the Constitution and to guard against any
infringement of those rights. In balancing the conflicting
interests between freedom of expression and the protection of the
public from fake news and hate speech, the courts would normally
proceed from the principle that the right to freedom of expression,
being a fundamental human right, must be given preferential
protective consideration; and any claim to its restriction or
derogation, must be construed strictly.

Recommendations

The pedagogic import of the folklore of Father tortoise and his
three youngsters should not be lost to fellow Nigerians. Just as
Father tortoise in the folklore had asked his kids how many times
they would allow a bad incident to happen to them before they would
take caution, the time for us to ask ourselves a similar question
has come! Today, one major social challenge Nigeria faces has
become the increasing challenge of what has been dubbed ‘hate
speech’! Under the canopy of ‘freedom of speech’, ‘right to
opinion’ and access to the ubiquitous social media, some misguided
Nigerians have taken to the gallery, dishing out what would do more
harm to Nigeria and Nigerians: vicious, derogatory and even
inciting attacks on individuals, ethnic groups or even entire
regions! The grave impact hate speeches and fake news have had on
other countries like America, Liberia, Sierra Leone, Rwanda and
Serbia, among others, is too glaring for us to ignore, and
something needs to be done.

In the light of all this, here are a few recommendations that
are needful.

Conventions

Conventions and agreements between nations to regulate the
social media.Social media is under multi-jurisdictional regulation,
necessitating more collaboration among nations to regulate
them.

Education

The state should strengthen the provision of human rights
education in schools, including adequate reflection in standard
school curricula and training of teachers and that efforts to
prevent and combat prejudices and to promote understanding and
tolerance in all spheres of life be continued, aimed particularly
at young people and the media.

Amend the Criminal Code

A provision should be inserted into the Criminal Code making
racist motivation an aggravating circumstance for all criminal
offences.

Proactive Government

Government agencies need to be proactive in releasing
information to avoid speculations and the chances of fake news
gaining ascendancy will be reduced.

Journalists Should Shun ‘Copy and Paste’

Media Literacy

 Media literacy is important as more and
more Nigerians can easily access the internet. People need to be
skeptical and ask themselves certain questions when they come
across some content in order to discern false news