HB 490: Digital Rights and Freedom Bill, 2016

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Sponsor:

Hon. Chukwuemeka Ujam

State: ENUGU
Party: Peoples Democratic Party

Bill Status: Passed!

  • First Reading: 20/04/2016
  • Second Reading: 22/06/2016
  • Committee Referred To: Committee on Human Rights, Committee on Telecommunications
  • Consolidated with:
  • Date Reported out of Committee:
  • Third Reading:19/12/2017
  • Reconsidered and Passed:

Bill Analysis:

SHORT TITLE

Digital Rights and Freedom Bill, 2016

OBJECTIVE OF THE BILL

The objectives of the Bill are: -

  • To guarantee the fundamental privacy rights of citizens and define the legal framework regarding surveillance;
  • To promote the freedoms of expression, assembly and association online;
  • To outline the provisions of lawful and authorized interception of communication within the digital environment without sacrificing the freedom and constitutional rights of citizens;
  • To guarantee the application of human rights within the digital environment;
  • To provide sufficient safeguards against abuse online and provide opportunity for redress;
  • To equip the judiciary with the necessary legal framework to protect human rights online

NUMBER OF CLAUSES/PARTS

The Bill has 7 parts and 22 clauses including a miscellaneous and an explanatory memo

CONTENTS

The Bill has the following contents: -

  • Fundamental Rights and Freedom: - Rights to digital privacy; protection of identity of internet user; privacy of personal data and information; freedom of opinion online; freedom of online association/assembly; access to online education and financial transparency.
  • Offences and Penalties:
  • Administration and Enforcement
  • Jurisdiction and International Cooperation
  • Enforcement of Victims’ Rights
  • Miscellaneous

IMPLICATIONS OF THE BILL

1. Online Fundamental Rights and Freedoms

The Bill provides under Clause 12(1) for the right to freedom of expression on the Internet subject to any restrictions in the 1999 Constitution (as amended), the Freedom of Information Act 2011 and other relevant legislations. The Clause further expands the freedom of Internet users to include ‘ideas or views that may shock, offend or disturb’ or ideas that may be controversial to the Authorities or majority of the population.

The “other relevant legislations” could include as many Acts as are relevant to the issue or matter including the Cyber Crimes Act 2015. This means that the freedom of an Internet user under this Bill is subject to the limitations to freedom of expression as provided in these other Acts.

             1.1  Right to Digital Privacy: - Clause 3(1) prohibits the unlawful interference of anyone’s online privacy. This provision makes it an offence to gain access to anyone’s online information or data without permission. The Bill provides that the Rule of Confidentiality shall apply to the entire provisions. In effect, personal information or details about an individual that they do not wish to share, shall remain confidential and any unpermitted access to it is prohibited under this Clause.
  1.2  Right to Anonymity: - Every person shall have the right to communicate anonymously without fear of interference with the correspondence under the Bill. This places a duty on Internet Service Providers to protect the identity of the Internet user who chooses to post materials anonymously. Internet users cannot also be compelled to adopt real name identity systems.
          

1.3   Confidentiality of Individual’s Personal Data: - The integrity and confidentiality of personal data and information of citizens is inviolable and therefore guaranteed under Clause 6(2) of the Bill. Any requests for private data shall follow legally stipulated procedures and may require a Court warrant to request for private data. The Bill therefore requires that due process be followed in the process of accessing another’s private data. Even though a person’s private data is confidential, it can be accessed legally when due process is followed (as provided under Clause 6(4) of the Bill).

This further provides in 6 (5) that every private entity holding citizen data shall publish in 2 (two) national dailies biannual periodic reports detailing the nature and frequency of government requests for access to individuals’ private data. This disclosure clause is for transparency in the release of individuals’ private information.
 

1.4  Right to Freedom of Expression: - Clause 13(17) and (18) provide examples of situations where the government violates the freedom of expression of citizens. Censorship on the internet or banning of certain web pages or isolating an entire region from the rest of the world by the State is a violation of the freedom of expression.

Also jamming of wireless signals and other means of censorship which deprives individuals of their right to freedom of opinion and expression is prohibited under the Bill.

Censorship of extraneous posts on the internet a usual practice employed to protect certain audiences (for instance Kids), but isolating a whole region from the rest of the country or the world at large is extreme.

2. Seven-Day Notice Before Bankruptcy: A service provider storing individuals’ details in “the cloud” should before declaring bankruptcy, provide notice to the data owner at least 7 (seven) days before in order to afford them ample time to get their data off that server. This notice is necessary to exempt the service provider of any liability regarding the status or condition of a user’s data after the service provider goes out of business.

3. Communication Surveillance: - The Bill under Clause 7(d) communication surveillance shall be based on the principle of necessity and as a last resort. The onus of establishing justification shall always be on the government and or the entity requesting surveillance. The surveillance is conducted only when it is the only means of achieving a legitimate aim or it is the means least likely to infringe upon human rights. The implication of this Clause is that should a lawsuit emanate from a communication surveillance, the government or entity requesting access would have the duty to prove that it was relevant and it was the least measure that could infringe on the rights of the data owner.

The Clause further provides that user notification shall be issued to anyone whose communications are put under surveillance with enough notice and information to enable them challenge the decision or seek other remedies. This means that there is a possibility that a request for surveillance may be denied or delayed, should the data owner seek a remedy to challenge it.

However, a data owner may not be provided with user notification if it would seriously jeopardize the purpose for which it was authorized or it can cause imminent danger to human life. Authorization to delay notification is granted by a Court of competent jurisdiction. The obligation to give notice rests with the State.

4. Whistleblower Protection: - The Bill seeks to protect whistleblowers from any form of sanction, attack, arrest or prosecution under Clause 10(17). Any person who has knowledge of any information regarding a crime or offence can, under the protection of this Clause, report to the relevant authorities

5. Compensation for Illegal Surveillance: - Clause 10(18) requires that adequate compensation be paid to any victim of illegal surveillance. The term “adequate compensation” was not defined by the Bill, which leaves it open for various interpretations. This also constitutes a gap in the Bill.

6. Protection of National Security: - The Bill prohibits the abuse of freedom of expression under the guise of ‘Protection of National Security’ under Clause 12(9). Furthermore the Bill provides that freedom of expression online shall not be subject to any restrictions, except those provided by the law and consistent with human rights standards. This Clause reiterates the protection provided for under Clause 12(1).

However protection of national security can be triggered if it can be demonstrated that the expression is intended to incite imminent violence. There should therefore be an established link or connection between the expression and occurrence of violence.

7. Prohibition of ‘Hate Speech’: - The Bill defines a ‘hate speech’ under Clause 13(13) as any speech, gesture or conduct capable of inciting violence or prejudicial action against any individual or group, by disparaging or intimidating an individual or group on the basis of attributes such as gender, ethnic origin, religion, race, disability or sexual orientation. Anyone who posts material that fall under the definition of ‘hate speech’ under the Bill violates this Clause and can be prosecuted when it becomes law.

The Bill forbids hate speech on social media and provides that it shall be the duty of the Courts to make a distinction between genuine incitement to extremism and the right of individuals to express themselves. In effect, the duty to determine what online material constitutes a hate speech shall be that of the Courts.

8. Freedom of Information Online: - Clause 14 provides that the use and re-use of government held data and information shall be available free of charge. If a fee is to be collected, it shall be done in a transparent manner for all users. This Clause ensures the right of citizens to access information shared by the government for various purposes without prohibition of any sort, except a fee is charged for such information. It shall be illegal for any entity to deny the public this right.

Clause 14(11) lists the types of information that may be restricted to include child pornography, hate speech, defamation, direct and public incitement to discrimination, hostility and violence

9. Peaceful Freedom of Assembly and Association Online: - Every citizen shall have the right to freedom of assembly and association online as guaranteed by Section 40 of the 1999 Constitution. This Clause guarantees citizens the right to associate or assemble as a group online on social media platforms or networks. Citizens engaging in peaceful assemblies shall have the right to access the internet and other new technologies at all times without interference except when restricted under the law.

10. Compulsory Internet Literacy: - it shall be the fundamental principle and practice of government agencies responsible for educational policymaking to include compulsory Internet literacy skills in school curricula, and support similar learning modules outside of schools. This Clause therefore requires that government schools amend their existing curricula to include Internet literacy skills.

11. Jurisdiction: - The Federal High Court shall have original jurisdiction to hear matters covered under the Bill (when it becomes and Act). All matters relating the non-compliance of the provisions of this Bill, when passed into Law shall be heard at the Federal High Court.

12. Administration and Enforcement: - The Bill, when passed into law shall be administered by the National Human Rights Commission (NHRC) in consultation with other relevant agencies of government, relevant civil society actors and relevant private sector members. The Act setting up the National Human Rights Commission would require an amendment to include this role, when this Bill is passed into Law.

13. Digital Assets Devolution: The digital assets or data sets of an owner such as passwords, digital contracts, pictures, bank accounts, writings, social interactions etc., can be inherited to be inherited by his next of kin or heir under Clause 8(2)

14. Data Protection: - It shall be the duty of the service providers to strictly protect the privacy rights of owners against violation by anyone; the occurrence of which shall give rise to compensation as shall be determined by the Court having due regard to the extent of the damage under Clause 8(3).

In the same vein, where a provider loses data of an owner, he shall be liable for damages commensurate to the value of data lost, plus interest at prevailing rate.

15. Electronic Communications Freedom: The Bill provides that citizens and lawful residents of Nigeria shall be at liberty to send electronic communications to one another free from the fear of surveillance, monitoring, interception or any other violation of privacy. Unless the communication is illegal or could cause harm in anyway, no one is precluded from communicating electronically and within their rights to digital privacy.

16. Transfer of Data to a Foreign Party: - A person may not transfer, transmit or cause to be transferred or transmitted by any means whatsoever to a third party who is in a foreign country unless the recipient is subject to legally binding corporate rules or agreements that provide adequate level of protection to the data and its owner.

17. Enforcement of Victims’ Rights: - A data owner under Clause 18(1) may institute a civil action against a responsible party for damages in a Court of competent jurisdiction. The Court may award an amount that is just and equitable, including payment of damages, interest and cost of lawsuit.

18. Penalty for Non-Compliance: - Any person who undertakes illegal communications surveillance and interference of another’s digital communication, upon conviction shall be liable to a term of imprisonment not less than 10 years or a payment of compensation not less than 7 million Naira (N7,000,000) or both. As the Bill expressly termed the payment “compensation”, it is not be a fine to the State; it is the payment to the data owner.

ANY SIMILAR EXISTING BILL

The Electronic Transaction Bill, 2015 (SB 15), which was passed on December 17, 2015 by the Senate

CONCLUDING ISSUES

The Digital Rights and Freedom Bill will be another step towards protecting the rights of citizens online after the passage of the Cyber Crimes Act, 2016. The Bill when passed into Law will safeguard the rights of bloggers, data owners and Internet Service Providers (ISPs). However, Clause 12 of the Bill provides that the provisions are subject to the provisions of the 1999 Constitution, FOI Act and ‘other relevant legislations’. This Clause might pose a limitation on the powers of this Bill when it is passed into Law, in such a way that conflicting sections in other Acts may take precedence over the provisions of this Bill.

Making it compulsorily fundamental for every school in Nigeria to include subjects that increase Internet literacy to their curriculum will definitely address the digital needs trending in the world of today. It is also will empower citizens to be able to exercise their Constitutional right to freedom of speech and be heard. Citizens can now voice their opinion and be heard by a lot of people because they use the social media as a platform to express themselves. This is reason why the Digital Rights and Freedoms Bill is pertinent to Nigeria as a democracy.

It is noteworthy that the 1999 Constitution (as amended) provides for the protection of the citizens’ right to free speech. However all the provisions under Chapters 2 and 4 of the Constitution can be technically interpreted as not including a person’s online presence. The Digital Rights and Freedom Bill extends those rights to platforms on the Internet.

This Bill has passed second reading and has been committed to the House of Representatives’ Committees on Human Rights and Telecommunications. It is anticipated to pass and subsequently assented to by the President. The protection of the fundamental rights of the citizens online, the guaranteed protection of online innovation and freedoms are part of the dividends of democracy, which is one of the reasons why the passage of this Bill is relevant in Nigeria.

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