The National Information Technology Development Agency (NITDA) on June 13, 2022 issued the Draft Code of Practice for Interactive Computer Service Platforms/Internet Intermediaries pursuant to the powers vested in it under section 6 of the NITDA Act, 2007. The Draft Code of Practice which has been subject of controversies following its release has been received with mixed feelings. While some scholars and stakeholders applaud it as a step in the right direction, others have criticized it on grounds that it is a calculated attempt by the Federal Government to restrict and criminalize social media usage, freedom of expression and abuse the fundamental human rights and online privacy rights of Nigerians.

This piece aims at highlighting the major features of the NITDA’s Code of Practice as well as examine its practicability in the digital ecosystem. Some of the major features are:

a. Provision of Complaints channel: The Code requires interactive computer service platforms/ internet intermediaries to create a dedicated complaints channel where authorized government agencies and users can complain or officially report unlawful and harmful contents on their platforms. Such complainant (government agency or user) shall be issued a special code to track the progress of the complaint as well as be presented with a written report on its resolution and evidence of its determination by the platform.¹

b. Penalty: Non-compliance with the Draft code shall be construed as a breach of the NITDA Act, 2007.²

c. Removal of Prohibited Contents/Materials: The Code requires Interactive Computer Service Platforms to remove prohibited contents within 24 (twenty-four) hours of being informed of the existence of such contents on its platform. Prohibited materials under the Daft Code are such that are objectionable on the grounds of public interest, morality, order, security, peace, or is otherwise prohibited by applicable Nigerian laws.

d. Designation of Large Service Platforms (LSPs)³: The Draft Code provides that platforms whose users are more than 100,000 (one hundred thousand) shall be referred to as LSPs and must:

i. Be incorporated in Nigeria

ii. Have a physical Nigerian contact address available on its website

Appoint a liaison officer to interface between the government and the platform

Provide the necessary mechanisms to ensure accuracy and fairness and promote freedom of expression and privacy of users

Furnish users or authorized government agencies with report on due process of their activities, why users get specific activities on their timelines, etc upon demand^4.

e. Disclosure of Information Pursuant to Court Orders: Interactive Computer Service Platforms are required to act expeditiously to disclose information under its domain as well as the identity of the creator of an information on its platform upon being mandated by a court order to that effect. Such compliance will only be validated where it is aimed at preventing, detecting, investigating, or prosecuting an offence⁵.

f. Due Diligence: Interactive Computer Service Platforms are mandated to exercise due diligence in ensuring that unlawful contents are not uploaded on their platforms. However, where such contents find its way to a platform, the platform is under compulsion to take such content down within 24 (twenty-four) hours of being aware or notified of such by a user or government agency⁶.

g. Prevention of Nudity/Sexual Contents: An Interactive Computer Service Platform shall act expeditiously to remove, disable, or block access to non-consensual content that exposes a person’s private areas, full or partial nudity, sexual act, deepfake, or revenge porn, where such content is targeted to harass, disrepute, or intimidate an individual within 24 hours of being notified of the presence of such content on its platform.

h. Legal and Regulatory Compliance: All Computer Service Platforms are mandated to comply with all applicable Nigerian laws and regulations as well as desist from acts capable of undermining or interfering with the application and enforcement of the law. Also, such platforms are expected to file an annual compliance report with NITDA that indicates the number of registered users, active registered users, closed and deactivated accounts, removed content with and without notice or Court order, contents put back with or without notice, contents removed and reuploaded, information on how children and adults are protected from harmful content which they may encounter, information on the number of complaints registered with a Platform, resolved and unresolved complaints, etc⁷.

i. Terms of Use: All Platforms are mandated to publish a term of use and rule of usage on its website which must be written in a simple and easily comprehensible manner⁸.

j. Measures on Misinformation and Disinformation: Interactive Computer Service Platforms are to take measures to prevent as well as curtail and take down contents capable of engendering misinformation and disinformation. They are equally obligated to trace, expose, penalise, and close accounts and sources that amplify disinformation and misinformation⁹.

While the Draft Code of Practice seem to be a right step towards regulating social media usage and prevention of contents harmful to children, child pornography, revenge porn, contents capable of undermining the sovereignty, peace, security and integrity of Nigeria, etc, there is the need to review the content of the Code to look into possible areas of infractions with citizens online privacy rights and ensure that they conform with the exercise of fundamental human rights of citizens to freedom of expression.

 ^1. See Part I (7-10) of the NITDA’s Draft Code of Practice

 ^2.See Part VI (2) of the Draft Code of Practice

 ^3. See generally Part III of the Draft Code of Practice

^4. Non-Large Service Platforms may also be required to comply with the obligations of an LSP where it is necessary to preserve the sovereignty, public order, security and integrity of Nigeria.

 ^5. See Part I (2 & 5) of the Draft code of Practice

 ^6. See Part I (6) of the Draft Code of Practice

 ^7. See Part II (9) of the Draft code of Practice

 ^8. See Part II (1) of the Draft Code of Practice

 ^9. See generally Part V of the Draft Code of Practice

Written by Muhiz Babatunde Adisa for The Trusted Advisors

Email us: info@cms.trustedadvisorslaw.com

Telephone Number: +234 810 159 9159