from the isps-and-human-rights dept
There has been a lot of focus on moderation as carried out by platforms—the rules social media companies base their decision on what content remains online. There has however been limited attention on how actors other than social media platforms, in this case governments, seek to regulate these platforms.
Focusing more on African governments, they carry out this regulation primarily through laws. These laws can be broadly divided into two: direct and indirect regulatory laws. The direct regulatory laws can be seen in countries like Ethiopia and more recently in Nigeria. They are similar to Germany’s Network Enforcement Act and France’s Online Hate Speech Law that directly place responsibilities on platforms and require them to remove online hate speech within a specific time and failure of which attracts heavy sanctions.
Section 8 of Ethiopia’s Hate Speech and Disinformation Prevention and Suppression Proclamation 1185/2020 provides for various responsibilities for social media platforms and actors. These responsibilities include the suppression and prevention of disinformation and hate speech content by social media platforms and a twenty-four window within which such content must be removed from their platforms. It also provides that they should bring their policies in line with the first two responsibilities.
The Proclamation further vests the reporting and public awareness responsibilities on the compliance of social media platforms in the Ethiopian Broadcasting Authority—a body empowered by law to regulate broadcasting services. The Ethiopian Human Rights Commission (EHRC), Ethiopia’s National Human Rights Institution (NHRI), also has responsibilities on public awareness. But it is the Council of Ministers that’s responsible for implementing laws in Ethiopia that may give further guidance on the responsibilities of social media platforms and other private actors.
In Nigeria, the legislative proposal, the Protection from Internet Falsehoods, Manipulation and Other Related Matters bill, is yet to become law. The bill seeks to regulate disinformation and coordinated inauthentic behaviour online. The law is similar to that of Singapore which has been criticised by the current United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression for the threats it poses to online expression and online rights in general.
Major criticisms against these laws include how they are opaque and pose threats to online expression. For example, the Ethiopian law defines hate speech broadly and does not include the contextual factors that must be considered in categorising online speech as hateful. With respect to the Nigerian bill, there are no clear oversight, accountability or transparency systems in place to check the government’s unlimited powers to decide what constitutes disinformation.
The indirect regulatory laws are those used by governments through their telecommunications regulatory agencies to compel Internet Service Providers (ISPs) to block social media platforms. This type of regulation requires ISPs to block social media platforms based on public emergencies or national interests. What constitutes these emergencies or interests are vague and in many instances are examples of voices or platforms critical of government policies.
In January 2021, the Ugandan government ordered ISPs to block Facebook, Twitter, WhatsApp, Signal and Fiber. The order was issued through the communications regulator. The order came a day after Facebook’s announcement that it will close pro-government accounts sharing disinformation.
In June 2021, the Nigerian government ordered ISPs to block access to Twitter stating that the latter’s activities constituted threats to Nigeria’s corporate existence. However, there have been contrary views that the order was as a result of both remote and immediate causes. The remote cause was the role Twitter played in connecting and rallying publics during the #EndSARS protests against police brutality while the immediate cause was attributed to Twitter’s deletion of President Muhammadu Buhari’s tweet which referred to the country’s civil war, contained veiled threats of violence, and violated Twitter’s abusive policies.
In May 2021, Ethiopia had just lifted the block on social media platforms in six locations in the country. Routine shutdowns like these have become a thing for African governments and this often occurs during elections or a major political development.
On a closer look, the cross-cutting challenge posed by both forms of regulation is the lack of accountability and transparency especially on the part of governments on how they enforce these provisions. Social media platforms are also complicit as there is little or no information on the nature of pressure they face from these government actors.
Alongside the mainstream debates on how to govern social media platforms, it is time to also consider wider forms of regulation especially on how they manifest outside Western systems and the threats such regulation poses to online expression.
One solution that has been suggested but also severely criticised is the application of international human rights standards to social media regulation. This standard has been argued to be the most preferred because of its customary application across contexts. However, its biggest strength also seems to be its biggest weakness—how does this standard apply in local contexts given the complexity of governing online speech and the myriad of actors involved?
In order to work towards effective solutions, we will need to re-imagine and re-purpose traditional governance roles of not only governments and social media platforms, but also ISPs, civil society, and NHRIs. For example, the unchecked powers of most governments to determine what constitutes online harms must be revisited to ensure that there are judicial reviews and human rights impact assessments (HRIAs) of proposed government social media bans.
ISPs must also be encouraged to jump into the fray, choose human rights, and not to roll over each time governments make such problematic demands to block social media platforms. For example, they should begin to join other actors like the civil society and the academia to lobby for laws and policies that make judicial reviews and HRIAs requirements before entertaining governments request for blocking of platforms or even content.
The application of international human rights standards to social media regulation is not where the work stops, but is where it begins. For a start, proximate actors involved in social media regulation like governments, social media platforms, private actors, local and international civil society bodies, and treaty-making bodies like the United Nations and the African Union, NHRIs must come up with a typology of harms as well as actors actively involved in such regulation. In order to ensure that these addresses the challenges posed by these kinds of regulation, the responsibilities of such actors must be anchored on international human rights standards but in such a way that these actors actively communicate and collaborate.
Tomiwa Ilori is currently a Doctoral Researcher at the Centre for Human Rights, Faculty of Law, University of Pretoria. He also works as a Researcher for the Expression, Information and Digital Rights Unit of the Centre.
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