Regulation Of Online Platforms In Nigeria: Draft Code Of Practice For Interactive Computer Service Platforms / Internet Intermediaries – Social Media

Introduction

On June 13, 2022, the National Information Technology Development Agency (“NITDA”) released the Code of Practice for Interactive Computer Service Platforms / Internet Intermediaries (the “Draft Code”).

The Draft Code aims to safeguard the security and interest of Nigerians and non-Nigerians with to respect activities conducted on online platforms. It also regulates the activities of online platforms including websites and social media operators.

We have set out in this article, the scope, objectives, and key points to note in the Draft Code.

1. Scope of the Draft Code

The Draft Code applies to Interactive Computer Service Platforms / Internet Intermediaries and their agents (the “Platform (s)”) in Nigeria. These Platforms include social media operators like facebook, twitter, tiktok, instagram etc, websites, blogs, streaming platforms, online discussion forums (eg podcasts), streaming platforms, and other similar platforms.

2. Objectives of the Draft Code

The Draft Code sets out best practices required of Platforms to ensure the safety of the digital ecosystem for Nigerians and non-Nigerians in Nigeria.

3. Key points from the Draft Code




4. i) Regulatory compliance: Platforms are required to comply with applicable laws and the directives of court orders received.




5. ii) Take down notices: Platforms should acknowledge and take down any unlawful content¹; non-consensual sexual content; or information that is objectionable on the grounds of public interest, morality, order, security, peace, or is prohibited by applicable Nigerian law (prohibited material) within 24 hours.

iii) Compulsory disclosure: Platforms should disclose the identity of the creator of information on its Platform when directed to do so by court order, (where the first creator of such information is located outside Nigeria, the first creator of that information in Nigeria shall be deemed to be the first creator).

1. iv) Complaint channel: Platforms are to provide a channel for users and authorized government agencies² to lodge complaints or make requests against unlawful or harmful content³. They are also expected to issue tracking codes to complainants and inform them in writing of the resolutions of such complaint.




2. v) Risk assessment requirement: Platforms are to ensure that they carry out risk assessment to determine whether content is harmful upon receiving notice of such complaint.




3. vi) Terms of Use: Platforms are to publish on their websites and / or applications in simple language, terms of use of its platform.

vii) Compliance report: Platforms are required to file an annual compliance report with NITDA.

viii) Categorization and Incorporation requirement: The Draft Code categorizes Platforms with more than one hundred thousand (100,000) users as Large Service Platforms (“LSPs”).

• Incorporation requirements: LSPs are required to be incorporated and have a physical contact address in Nigeria and ensure that the details of this physical address are visible on their websites / platforms. They are also required to appoint a liaison officer.




• Content oversight: LSPs are to furnish a user or authorized government agency (on demand) with information with respect to: a) the reason behind a popular content and the factor / figure behind such influence; and b) why users get specific information on their timelines.




• ix) Penalty: Non-compliance with the Draft Code shall be construed as a breach of the provisions of the NITDA Act 2007.

The NITDA Act provides that any corporate body who commits an offense where no specific penalty is provided, is liable on conviction: (a) for a first offense, to a fine of Two Hundred Thousand Naira (N 200,000) or imprisonment for a term of 1 year or to both such fine and imprisonment; and (b) for a second and subsequent offense, to a fine of Five Hundred Thousand Naira (N 500,000) or to imprisonment for a term of 3 years or to both such fine and imprisonment. Please note that the penalties may be reviewed from time to time.

1. x) Non-Large Service Platforms: The Draft Code also stipulates that Platforms with less than one hundred thousand (100,000) users may be required by NITDA to comply with the obligations of a Large Service Platform.

Conclusion

We applaud NITDA’s efforts in working towards establishing a code that will regulate online platforms.

We have however set out below a few recommendations to improve the Draft Code.

1. The code needs to clearly state the metrics to determine when a Platform is deemed to be in Nigeria.




2. The code should clarify whether the one hundred thousand (100,000) users specified for LSPs pertain to users solely in Nigeria or users on the Platform irrespective of country of residence.




3. The code should introduce a provision to enable Platforms to appeal and put forward a defense against take down notices and obtain approval to re-instate content upon a successful appeal.

Footnotes